Loading...
HomeMy WebLinkAbout2011.1201.TCRM.Minutesz:\council packets\2011\r12-15-11\111201m.docx Page 1 of 14 TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL DECEMBER 1, 2011 * CALL TO ORDER AND PLEDGE OF ALLEGIANCE Mayor Schlum called the meeting to order at 6:32 p.m. * INVOCATION – Pastor Steve Bergeson, Shepherd of the Hills Lutheran Church * ROLL CALL Present for roll call were the following members of the Fountain Hills Town Council: Mayor Schlum, Councilmember Contino, Councilmember Leger, Councilmember Elkie and Vice Mayor Dickey. Interim Town Manager/Finance Director Julie Ghetti, Town Attorney Andrew McGuire and Town Clerk Bev Bender were also present. Mayor Schlum excused Councilmembers Brown and Hansen from the meeting. * MAYOR'S REPORT None. * SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS None. * CALL TO THE PUBLIC Town Clerk Bev Bender advised that Mr. Steve Fleming wished to speak to the Council. Mr. Fleming addressed the Council and said that he is representing the Sonoran Conservancy of Fountain Hills - the trail builders in the Preserve. He advised that the Conservancy would like to make an offer to the Town that the Conservancy be allowed to adopt the Fountain Overlook Trail and to provide regular routine maintenance on it. He said that it is a beautiful trail and in need of a lot of work and the Conservancy recognizes that the Town has both budgetary and personnel restraints. He added that they feel that this would be consistent with their mission in the Town -- namely, to do such things. He stated that he is aware of the fact that the Council cannot respond under this agenda item but asked them to consider this proposal and hopefully accept the offer. Mayor Schlum thanked Mr. Fleming for his comments. Mr. Fleming said that the proposal is a simple one and he has talked with Mr. Mark Mayer about this as well as Mr. Bryan Hughes conceptually and they think it would be wonderful but the Conservancy really wanted to offer it to the Council and to the Town. * CONSENT AGENDA AGENDA ITEM #1 – CONSIDERATION FOR APPROVAL OF RESOUTION 2011-46, ABANDONING WHATEVER RIGHT, TITLE OR INTEREST THE TOWN HAS IN CERTAIN PORTIONS OF THE PUBLIC UTILITY AND DRAINAGE EASEMENT LOCATED AT THE REAR PROPERTY LINE OF PLAT 602 -A, BLOCK 1, LOT 28 (15626 E. CAVERN DRIVE) AS RECORDED IN BOOK 161 OF MAPS, PAGE 42, RECORDS OF MARICOPA COUNTY, ARIZONA. CASE NUMBER EA 11-06 (HOLLISTER). z:\council packets\2011\r12-15-11\111201m.docx Page 2 of 14 AGENDA ITEM #2 – CONSIDERATION OF APPROVING THE AGENT CHANGE/ACQUISITION OF CONTROL LIQUOR LICENSE APPLICATION SUBMITTED BY GASPARE MANNO, OWNER/AGENT OF SICULI, LLC DBA SAPORI D'ITALIA LOCATED AT 11865 N. SAGUARO BOULEVARD, FOUNTAIN HILLS, AZ. THIS IS FOR A SERIES 12 LICENSE (RESTAURANT). Councilmember Leger MOVED to approve the Consent Agenda as listed and Vice Mayor Dickey SECONDED the motion. In response to a question from Councilmember Elkie, Town Attorney Andrew McGuire explained that the stipulation included in the Staff Report is included with the motion. He added that it certainly doesn't hurt to mention it as part of t he motion. Councilmember Leger said that the motion is to approve Agenda Items 1 and 2 (including the stipulation associated with Agenda Item #1) and Vice Mayor Dickey concurred. A roll call vote was taken with the following results: Vice Mayor Dickey Aye Mayor Schlum Aye Councilmember Leger Aye Councilmember Hansen Absent Councilmember Contino Aye Councilmember Brown Absent Councilmember Elkie Aye The motion CARRIED UNANIMOUSLY by those present (5-0). REGULAR AGENDA AGENDA ITEM #3 – CONSIDERATION OF APPOINTING FOUR (4) CITIZENS TO SERVE ON THE SENIOR SERVICES ADVISORY COMMISSION FOR TWO (2) YEAR TERMS BEGINNING JANUARY 1, 2012 AND ENDING DECEMBER 31, 2013. Mayor Schlum thanked the outgoing members of the various boards and commissions for their service and thanked the new members for their willingness to serve. Mayor Schlum MOVED to appoint Bill Whittaker, Grace Jakubs, Sherman Abrahamson and Barbara Patterson- Whitehead to serve on the Senior Services Advisory Commission for two (2) year terms beginning January 1, 2012 and ending December 31, 2013 and Councilmember Leger SECONDED the motion, which CARRIED UNANIMOUSLY by those present (5-0). AGENDA ITEM #4 – CONSIDERATION OF APPOINTING ONE CITIZEN TO SERVE ON THE COMMUNITY CENTER ADVISORY COMMISSION FOR A TWO (2) YEAR TERM BEGINNING JANUARY 1, 2012 AND ENDING DECEMBER 31, 2013. Mayor Schlum MOVED to appoint Bill Muehlhauser to serve on the Community Center Advisory Commission for a two (2) year term beginning January 1, 2012 and ending December 31, 2013 and Councilmember Elkie SECONDED the motion, which CARRIED UNANIMOUSLY by those present (5-0). AGENDA ITEM #5 - CONSIDERATION OF APPOINTING THREE (3) CITIZENS TO SERVE ON THE PARKS AND RECREATION COMMISSION FOR TWO (2) YEAR TERMS BEGINNING JANUARY 1, 2012 AND ENDING DECEMBER 31, 2013. z:\council packets\2011\r12-15-11\111201m.docx Page 3 of 14 Mayor Schlum MOVED to appoint Natalie Varela, Greg Woo and Ron Ruppert to serve on the Parks and Recreation Commission for two (2) year terms beginning January 1, 2012 and ending December 31, 2013 and Vice Mayor Dickey SECONDED the motion, which CARRIED UNANIMOUSLY by those present (5-0). AGENDA ITEM #6 – CONSIDERATION OF APPOINTING THREE (3) CITIZENS TO SERVE ON THE MCDOWELL MOUNTAIN PRESERVATION COMMISSION FOR THREE (3) YEAR TERMS BEGINNING JANUARY 1, 2012 AND ENDING DECEMBER 31, 2014. Mayor Schlum MOVED to appoint Bill Craig, Bill Myers and Elena Torre to serve on the McDowell Mountain Preservation Commission for three (3) year terms beginning January 1, 2012 and ending December 31, 2014 and Councilmember Elkie SECONDED the motion, which CARRIED UNANIMOUSLY by those present (5-0). AGENDA ITEM #7 – CONSIDERATION OF APPOINTING TWO (2) CITIZENS TO SERVE ON THE PUBLIC SAFETY ADVISORY COMMISSION FOR TWO (2) YEAR TERMS BEGINNING DECEMBER 1, 2011 AND ENDING OCTOBER 31, 2013. Mayor Schlum MOVED to appoint Lyle Edwards and Carol Comito to serve on the Public Safety Advisory Commission for two (2) year terms beginning December 31, 2011 and ending October 31, 2013 and Vice Mayor Dickey SECONDED the motion, which CARRIED UNANIMOUSLY by those present (5-0). Mayor Schlum asked all of the new and reappointed members present in the audience to stand and be recognized and again thanked them for their willingness to contribute to the community. He also thanked everyone who applied to serve but were not selected and noted that there are a lot of other opportunities to serve in the Town and he hopes that they will apply to serve again. AGENDA ITEM #8 – PUBLIC HEARING OF A REQUEST FOR A SPECIAL USE PERMIT TO ALLOW THE INSTALLATION OF A GOLF BALL NET AT 10406 N. DEMARET DRIVE, LOCATED IN THE R1-8 RUPD ZONING DISTRICT. CASE #SU2011-05. Mayor Schlum declared the public hearing open at 6:40 p.m. He said that there will be one report for Agenda Items 8 and 9. Senior Planner Bob Rodgers addressed the Council relative to these agenda items and briefly discussed the contents of the Staff Report (Copy available in the office of the Town Clerk). He said that this is an application for a Special Use Permit to allow the installation of a 25-foot tall golf ball net along the side and rear property lines at 10406 N. Demaret Drive. He referred to an aerial photograph of the property and noted that there are a number of large trees located behind the house that were presumably placed there to deflect golf balls so the potential hazard was appreciated early on. He discussed the net and the fence and referred to additional PowerPoint slides to give them a clearer picture of what is being discussed. He said that the net is black mesh with black poles and was installed along t he fence line and is actually attached to the fence line in a number of places. Mr. Rodgers advised that the Zoning Ordinance outlines six criteria that must be met in such a case and said that staff has reviewed them and believes that four of the criteria have been met. He discussed the three criteria that have not been met: (1) The poles are black and they need to be painted to match the house (an easy fix and the applicant who is not present this evening has agreed to do this); (2) The fence is requir ed to be set back at least 25 feet from the side property line or have written consent from the abutting property owner to be closer. In this case, the fence was erected without a review or permit and it appears to staff that it is likely on the neighbor's property. In addition, the neighbor has not indicated any type of consent for the fence to be closer than 25 feet so that would constitute a stipulation that would have to be taken care of; and (3) The Town Engineer's report noted that the fence was installed within a public utility easement and the applicants will have to address that either through the encroachment or abandonment process with the various utilities involved. He noted that these items must be addressed in order for the fence to remain w here it is and commented on the six stipulations recommended by staff and the Planning and Zoning Commission. z:\council packets\2011\r12-15-11\111201m.docx Page 4 of 14 Mr. Rodgers advised that staff has recommended that the Council approve the Special Use Permit subject to the stipulations. He added that the applicant may not be able to meet all of the stipulations and said that in that case the fence is going to have to be moved or removed but staff wanted to give them a chance just in case a safety hazard does exist. Mayor Schlum thanked Mr. Rodgers for his overview of this case. Town Clerk Bev Bender advised that there were no citizens wishing to speak on this agenda item. Mayor Schlum closed the public hearing at 6:47 p.m. AGENDA ITEM #9 – CONSIDERATION OF A REQUEST FOR A SPECIAL USE PERMIT TO ALLOW THE INSTALLATION OF A GOLF BALL NET AT 10406 N. DEMERET DRIVE. LOCATED IN THE R1-8 RUPD ZONING DISTRICT. CASE #SU2011-05. (For a report on this Agenda Item, see Agenda Item #8 above). There were no citizens wishing to speak on this agenda item. Vice Mayor Dickey requested clarification on the processes that were skipped by the applicants and Mr. Rodgers replied that the applicants did not obtain a building permit to erect the fence, the encroachment into the utility easement would have had to have been addressed before the fence was installed and they would have had to obtain the adjacent property owner's consent to place the fence closer than the 25-foot requirement. He added that a hearing for a Special Use Permit would also have had to take place. The Vice Mayor asked if Mr. Rodgers was aware of any individuals, other than the neighbor who has already contacted the Town, who have concerns about the fence and he responded that he is not. Vice Mayor Dickey asked if there are any grounds to deny something like this if all six criteria were met (does the Council have any discretion at all?). Town Attorney Andrew McGuire advised that the Special Use Permit process is more like a land use process -- zoning or other considerations. It is not like a subdivision requirement and he believes that the Council does have discretion. He further stated, however, that if all six conditions were met and the Council still denied t he permit, they could be subject to a challenge. He said that in a typical case, discretion starts at the highest level and then the more administrative the process is the less discretion they have (and this process is fairly administrative). Vice Mayor Dickey thanked Mr. McGuire for his comments and said that the regret is that the fence is already there and that takes more of the discretion away. Councilmember Leger stated that typically, if the applicant followed the process and applied for a Special Use Permit, he assumes there would have been a posting. Mr. McGuire responded in the affirmative and explained that under the Zoning Ordinance there is a process for posting properties, public hearings, etc. -- just like they do with any other change in land use. Councilmember Leger commented that he understands that but just wanted it clarified. He added that as they look at the conditions, which put things back straight as far as following the process, he is wondering why they don't have a condition included that requires a posting notice to notify people that they are going through the process and correcting it. He said that this would give anyone who wishes to object an opportunity to do so. Mr. Rodgers replied that staff did post this meeting (notice of the public hearing) and sent out notices to the abutting owners within 300 feet of the property. He said that the utility permit and the building encroachment processes do not require this type of a hearing but this hearing was legally posted and advertised. z:\council packets\2011\r12-15-11\111201m.docx Page 5 of 14 Councilmember Elkie referred to Stipulation #6 as it relates to the other stipulations and noted t hat it says, "Applicant shall satisfy all stipulations within one year of the Town Council approval or, if unable to do so, remove the fence." He added that there are other stipulations that have to be complied with within 90 days or the fence must be rem oved. He asked if that could be interpreted to mean that someone has a year to comply with everything and if you don't you have to remove the fence. Mr. McGuire stated that he is not sure what the intent was as far as having a different time frame on the termination. He added that he believes the 90 days might be a little bit troublesome if someone wasn't able to get all of the approvals and the fence was removed. Mr. Rodgers clarified that the intent behind the Planning and Zoning Commission's actions was that they wanted to get the applications for the building permit and for the encroachment in soon but they didn't know how long it would take for the encroachment permit to go through the process so they wanted to give them enough time to get that fina lized one way or the other before they had to tell them to take down the fence. Councilmember Elkie stated that he has concerns as far as it being conflicting because it could be read and taken to read that they have a year to apply and receive a building permit for the fence and have any fees and penalties be applied. Mr. Rodgers said that Condition #5 is what he is talking about -- they wanted the applicant to at least get the application in within 30 days so that they knew that the process had started. He added that he would be happy to recommend a change in wording in the conditions if the Council believes it is warranted. Councilmember Elkie reiterated that the wording appears to be conflicting and a little bit unclear. He asked what penalties the homeowner would be responsible for. Mr. Rodgers advised that the building permit will cost double the usual price and noted that the fence itself was not an inexpensive item to purchase or erect. Councilmember Elkie said that the fees, as far as the Town, would be double the building permit fee and asked what penalties would apply. Mr. Rodgers responded that the double cost of the permit is the penalty. Councilmember Elkie asked Mr. Rodgers to identify the three items in the Town Engineer's report (dated 10/25 /21011). Mr. Rodgers stated that the items included getting the building permit, obtaining an encroachment permit and resolving the possible trespassing issue. Mayor Schlum said that he assumes that the applicant is not likely to obtain approval from the n eighbor as far as the fence and added that he is not sure whether that is the same neighbor who wrote the letter. Mr. Rodgers advised that it is not the same neighbor and when the applicants came before the Planning and Zoning Commission they indicated that they were going to contact the current neighbor and request permission for the fence's location. He added that he has not heard anything since. Mr. Rodgers said that if the fence is actually on the applicant's property it could stay if the neighbor and the Council agree but it is likely that it is on the neighbor's property and in that case it would have to be moved (poles would have to moved -- those on the neighbor's property and those located in the public utility easement -- and six utilities would have to agree to grant the easement). Mayor Schlum stated that it appears that the whole fence will have to be moved and there will be a cost to the owner. z:\council packets\2011\r12-15-11\111201m.docx Page 6 of 14 Mr. Rodgers noted that the owners have indicated that if they do have to move the fence back to meet the 25 foot setback it is going to render the fence useless as far as blocking golf balls -- the reason it was erected in the first place. They would probably have to remove the fence completely because it would not be any good to them. Mayor Schlum commented that obviously the fence was erected without talking to any of the neighbors or to the Town about the required approvals. He added that it appears that the fence will have to be taken down and then the process would have to begin from the start, which is what should have been done in the first place. The Mayor asked Mr. McGuire if he believes there are any challenges are associated with this and Mr. McGuire responded that there is a definite zoning violation and other violations as well including the blue staking requirement that the various utilities must be notified before someone starts digging into their easements. He added that if the property lines are established and deemed to be where staff believes them to be, and they encroach on the neighbor on one side and into the utility easement on the other side, the only one that has a chance of not being moved is the one utilities pole if they obtain the consent of the utilities and the Town. He said that he believes there is a chance that the fence could stay partially where it is and only three fifths of it would have to be moved but there is not much chance of that if it goes into the neighbor's property. He added that he thought Councilmember Elkie suggested a good compromise -- have the neighbor obtain a Special Use Permit for the fence as well and if the two overlap it would constitute a creative approach and might be a possibility. He stated that that is why he believes the one year time period is important and said that all o f this is based on the Town's willingness to not enforce the violations against numerous codes that have occurred because of the fence being constructed without any notification, permits, etc. He added that if they start with that basis and go from there then they can work on "fix its" the rest the rest of the way through. Mayor Schlum advised that if the Council is ultimately going to approve something with stipulations and there isn't a great need to move the fence then maybe he wouldn't consider what he mentioned earlier. He added that it sounds like the fence is going to have to be moved -- if it was out of compliance when it went up then it has to come down anyway -- so take it down, go through the entire process appropriately and make sure it is on the applicant's pr operty or work with the neighbors if they want to assume the liability associated with the fence then perhaps it can work out. He asked the Council if they felt that the stipulations are appropriate and sufficient. There were no objections from the Council. Councilmember Elkie stated that the stipulations are effectively requiring the homeowner to take the fence down or remove a substantial portion of it. He said that he is very much in favor of doing things as easily and straight forward as possible and asked if Mr. Rodgers had gotten any indication from the homeowners that they would be willing to follow these stipulations (any indications either way?). Mr. Rodgers replied that the applicants stated at the Planning and Zoning Commission meeting that they were perfectly happy to go through the process and try to get the approvals. Councilmember Elkie stated that he would be in favor of allowing the homeowners to try and get this done and work with their neighbors. One of the stipulations calls for them to try and solve the potential trespassing issue with their neighbor. Mr. Rodgers noted that they are going to have to get the property line surveyed to determine exactly where the property lines are and if they are across the line then they are going to have to move that section of the fence. Mayor Schlum interjected that they cannot approve a fence on someone else's property without a permit. Discussion ensued relative to the possibility of the applicants getting together with their neighbor and obtaining a joint permit and Councilmember Elkie's question as to whether that would be possible and Mr. Rodgers reply that it is possible but he has not heard from the neighbors and is not sure if they even have any concerns about golf balls; the Mayor's comment that that may be a potential solution; the fact that if nothing is done then Code Enforcement would be directed to take the fence down; Councilmember Leger's question as to whether the fence would still have to be moved if the z:\council packets\2011\r12-15-11\111201m.docx Page 7 of 14 neighbors grant approval for the fence to be on their property and Mr. Rodgers response that it would have to be removed or, as the Mayor suggested, they would have to come in with a joint application for both properties; the fact that the survey is the key but even so, if it is within 25 feet, they will still have to get the neighbor's permission; Councilmember Legers question as to whether a year is a good time period and Mr. McGuire's response that that there are a number of things to be done, especially contacting the six utilities, time will be needed and although a year seems like a long time now, it may not be so long based on all that will need to be done (and the fence would remain up for that year); Councilmember Leger's question as to whether six months would be more realistic and Mr. McGuire's response that six months or one year will not be materially different; Councilmember Leger's statement that they have a fence that was installed illegally without permits and may be infringing on someone else's property, there is an issu e with the easement and they also have a complaint from a neighbor who feels that the fence aesthetically devalues their property value and his concern that they are considering condoning all of this illegal behavior (he is not sure he can support that and allow a year for attempts to rectify the situation). Councilmember Leger noted that the citizen who complained has rights as well. Vice Mayor Dickey asked if the Council decides not to approve this, what would the time period be for taking the fence down and Mr. Rodgers advised 30 days. Councilmember Elkie stated that he would like to go through each of the four stipulations. The first one says that the property owner shall apply for and receive a valid Building Permit for the fence. All fees and penalties shall apply. He said that they should set a time restriction on that - perhaps 30 days for them to apply for the permit. He added that the second one is the Property Owner shall comply with the three items contained in the Town Engineer's review memo dated 10-25-11. He said they have gone over some of those and one of them included not being within 25 feet of the property line. He stated that the solution to that potentially is to remove that section of the fence or obtain a joint permit and a deadline should be placed on that as well, perhaps 90 days. He further stated that the third is the Property Owner shall take the necessary steps to comply with the Fountain Hills Zoning Ordinance Golf Fence Criteria "c" within 90 days of Town Council approval or, if unable to do so, remove the fence (he clarified that this is the one that pertains to the 25 feet and they will have 90 days. He said that the last one is the Property Owner shall repaint the poles so as to comply with Fountain Hills Zoning Ordinance Golf Fence Criteria "e" within 90 days of Town Council approval or, if unable to do so, remove the fence. Mayor Schlum stated that he is not sure that the 90 days would work for the public utility easements (the waivers). Mr. Rodgers advised that the Town Engineer has just indicated that six months would be a more reasonable timeframe in which to obtain the required utility waivers and Councilmember Elkie agreed with that timeframe. Councilmember Elkie MOVED to approve the Special Use Permit to allow the installation of a golf ball net at 10406 N. Demaret Drive subject to the stipulations contained in the Staff Report with the following amendments to those stipulations: * Stipulation #1 - that the applicant applies for and receives a valid Building Permit within 30 days; * Stipulation #2 - that the applicant complies with the three items contained in the Town Engineer's review memo dated 10/25/11 within 180 days; * Stipulations #3, #4 and #5 remain the same and remove Stipulation #6. Vice Mayor Dickey SECONDED the motion. There were no citizens wishing to speak on this agenda item. Vice Mayor Dickey stated that they are talking about a maximum of six months now and Mayor Schlum concurred. He added that the applicants do have to come in quicker to address the other items (most of them within 90 days and if they don't do that the fence comes down). z:\council packets\2011\r12-15-11\111201m.docx Page 8 of 14 Councilmember Leger commented that they are no longer inconveniencing the neighbor for a year and the conditions are more rigid in terms of the permitting process, which will expedite the removal of the fence if the conditions are not met. He said that in the letter from the neighbor who objected to this issue, an interesting observation was made -- that even with the existing fence up, golf balls are still coming onto that property to the extent that the renter had to put up a secondary fence to protect the pool. He asked if anyone had conducted a site visit. Mr. Rodgers advised that he was on site and referred to aerial photographs depicting the property lines. He said that sometimes those property lines depicted in the aerials are not quite right. Mayor Schlum noted that that is why a survey will have to be performed. The motion CARRIED UNANIMOUSLY by those present (5-0). AGENDA ITEM #10 - PUBLIC HEARING OF A SPECIAL USE PERMIT FOR VERIZON WIRELESS, TO ALLOW THE INSTALLATION OF A 26' TALL STEALTH SAGUARO CELLULAR ANTENNA ARRAY AT 9800 N. SUMMER HILL BLVD., LOCATED IN THE "R1-6A RESORT" ZONING DISTRICT. CASE #SU2011- 06. Mayor Schlum stated that there will be one report for Agenda Items #10 and #11. The Mayor declared the public hearing open at 7:13 p.m. Senior Planner Bob Rodgers addressed the Council relative to this agenda item and briefly review ed the contents of the Staff Report (Copy on file in the office of the Town Clerk). He advised that the proposal is to place the tower on the Inn at Eagle Mountain property west of the 18th green and it will be adjacent to the existing T -Mobile Saguaro antenna. He discussed the location of the tower in greater length and noted that the equipment will be walled and look like the existing equipment area. He added that parking and accessibility are good. He reported that the tower will be 26 feet tall and said that this is nine feet shorter than the existing 35 foot tall T-Mobile antennae and it will be designed to look like a saguaro cactus. He advised that the Zoning Ordinance outlines eight factors to consider when granting this type of a Special Use Permit and staff has reviewed them and believes that two factors will not be met. The first one is if the tower is within 300 feet of a residentially zoned property a Special Use Permit is required and this is on a residentially zoned property and that is why the case is before the Council this evening. The second one is the surrounding foliage is natural desert landscaping and it could benefit from some additional plantings so staff has included this as one of the recommended stipulations. Mr. Rodgers informed the Council that the Planning and Zoning Commission forwarded a recommendation for approval of this Permit and staff also recommends approval subject to the stipulations contained in the Staff Report. Mr. Rodgers indicated his willingness to respond to any questions from the Council. Mayor Schlum thanked Mr. Rodgers for his presentation. There were no citizens wishing to speak on this agenda item. The Mayor declared the public hearing closed at 7:15 p.m. AGENDA ITEM #11 - CONSIDERATION OF A SPECIAL USE PERMIT FOR VERIZON WIRELESS, TO ALLOW THE INSTALLATION OF A 26' TALL STEALTH SAGUARO CELLULAR ANTENNA ARRAY AT 9800 N. SUMMER HILL BLVD., LOCATED IN THE "R1-6A RESORT" ZONING DISTRICT. CASE #SU2011- 06. (See Agenda Item #10 for discussion on this item.) z:\council packets\2011\r12-15-11\111201m.docx Page 9 of 14 Councilmember Contino MOVED to approve the Special Use Permit subject to the stipulations contained in the Staff Report and Councilmember Leger SECONDED the motion. There were no citizens wishing to speak on this agenda item. Councilmember Leger noted that the Council's packets did not contain any letters from citizens objecting to this and asked if any complaints had been received by phone. Mr. Rodgers advised that he has not received any complaints at all. The motion CARRIED UNANIMOUSLY by those present (5-0). AGENDA ITEM #12 - CONSIDERATION OF RESOLUTION 2011-38, AMENDING THE DEVELOPMENT AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND FIREROCK PLAZA, LLC. Director of Development Services Paul Mood addressed the Council relative to this agen da item and briefly highlighted the contents of the Staff Report. He noted that in 2006 the Town and the owner of FireRock Plaza LLC entered into a development agreement that required FireRock Plaza to complete the off-site improvements, which included a sidewalk and a traffic signal at the entrance. Since FireRock Plaza LLC lost their property to the bank and it is currently owned by Wells Fargo, the current location is where the Urgent Care Facility is and there are ten suites in the Plaza, four with Certificates of Occupancy and six without. He advised that Wells Fargo contacted the Town because they are marketing the property for sale and the Town has been contacted by a local real estate agent and one from California as well and they are interested in the property. Mr. Mood stated that staff advised Wells Fargo that the Town would not issue any Certificates of Occupancy until requirements are met. He noted that originally they wanted to reimburse the Town $100,000 to basically consider all the off-sites that are undone as being complete. He reported that the Town does not intend to place a traffic signal there -- it was something that the original developer wanted and the Town said that if they paid for it and it meets all the warrants they could do so. He added that right now there is no need for a traffic signal so staff is recommending that this amendment take away that requirement and also adds that in the future if they do request a traffic signal the owner will have to pay for it. He advised that there is a cross access easement agreement between FireRock Plaza and what is currently the Shea East Plaza. They have an agreement in place that says FireRock Plaza will pay for 60% of the cost for a traffic signal and that Shea East Plaza would pay the remaining 40% of the cost if one is ever installed. Mr. Mood advised that staff negotiated with Wells Fargo and had the Town Engineer look at the cost for the sidewalk and they would be required to put in conduits if a future traffic signal were to go in. Staff determined tha t design and construction would be approximately $200,000 and Wells Fargo has agreed to pay that amount. He added that the Shea and Saguaro project, which is at 80% design, will bring the sidewalk down to Circle K and then they would change order and change the design and construction of the sidewalk and traffic signal conduit that Wells Fargo would be responsible for into the project and build it all at one time so they are not going back in a second time and tearing up the road. He sa id that staff recommends approval of the amendment to the development agreement and added that he would be happy to respond to any questions from the Council. Mayor Schlum thanked Mr. Mood for his excellent presentation. Vice Mayor Dickey MOVED to approve Resolution 2011-38, amending the Development Agreement between the Town of Fountain Hills and FireRock Plaza, LLC dated March 16, 2006 and Councilmember Leger SECONDED the motion. There were no citizens wishing to speak on this agenda item. Councilmember Elkie asked what the cost would have been if FireRock Plaza had put the traffic signal in and Mr. Mood estimated that it would have cost approximately $240,000. He added that the meandering sidewalk would have cost approximately $100,000. z:\council packets\2011\r12-15-11\111201m.docx Page 10 of 14 Councilmember Elkie stated that the Town is coming out ahead by approximately $50,000 to $100,000. Mayor Schlum asked about the conduit and Mr. Mood advised that there will be two sets of conduit -- one for a future traffic signal and one in case a company or the Town wants to put fiber in in the future. The motion CARRIED UNANIMOUSLY by those present (5-0). AGENDA ITEM #13 - CONSIDERATION AND POSSIBLE DIRECTION TO STAFF TO AUTHORIZE AN UNBUDGETED GENERAL FUND EXPENDITURE IN THE AMOUNT OF $28,017.21 TO THE ARIZONA DEPARTMENT OF WATER RESOURCES (ADWR) FOR THE ANNUAL MUNICIPALITY FEE AS ESTABLISHED BY THE ARIZONA LEGISLATURE UNDER A.R.S. §45-118. Mayor Schlum advised that there will be one presentation for Agenda Items #13 and #14. Environmental Planner Raymond Rees addressed the Council relative to this agenda item and said that earlier this year the State Legislature passed, and the Governor signed into law, Senate Bill 1624 - The Environmental Budget Reconciliation Bill. He noted that Sections 2 and 7 of that bill authorize the Arizona Department of Water Resources (ADWR) to assess and collect a fee from each municipality in the State. He added that the fee can't equal more than $7 million, which is approximately the same amount that ADWR was defunded out of the State budget. He advised that the money that they are going to collect is going to be used for planning, hydrologic studies and research and, on a more local level , the fees are going to be used to secure and ensure that Fountain Hills' residents have a safe and sustainable water supply for the next 100 years. He noted that Chaparral City Water has a junior water right to the Colorado River and they rely heavily on the Central Arizona Project (CAP), which is fed from the Colorado River. Mr. Reese further stated that in August of this year the ADWR filed with the office of the Secretary of State a Notice of Exempt Rule Making, which established those fees and those fees are what were read earlier (the $28,000 and change). He said that in August of this year the Town received its invoice for Fiscal Year 2011-12 and that was calculated based on the population of each municipality. The Town did have the ability to question or petition the calculations but that was only based on a clerical error or some minor errors and so it was not done. In October the ADWR held their final Rule Making and that was to establish the permanent fees for 2012 and beyond. The amount went from $28,000 and change to $31,000 plus dollars per year. Mr. Rees informed the Council that if the Town decided not to pay the fee, the Legislature has no direct enforcement mechanism in place currently. They are required to report to the State Budget Office all municipalities that do not pay the fee and also report to the Joint Legislative Office and to the office of the Senate President. Mr. Rees indicated his willingness to respond to questions from the Council. Mayor Schlum thanked Mr. Rees for his presentation. There were no citizens wishing to speak on this agenda item. Vice Mayor Dickey asked if there was any action pending on this item from other municipalities (anything that the Town can draw on?). Town Attorney Andrew McGuire advised that the discussion lately has been twofold: one, almost every municipality that has a water service provider incorporated into its municipal structure is passing the fee on to their customers. He reported that that position was mainly taken because the League of Arizona Cities & Towns was concerned about the reporting requirements. The people who are to be notified are those who can cause grief for any municipalities th at decide not to pay the fee. He added that for the most part the League's concern held true in terms of determination on whether to move the fee forward and pass it on to their residents. The problem is that there are many municipalities in the State, smaller ones for the most part but some large ones as well, that do not have their own water service and for those communities there simply is no mechanism for them to recoup the money (pass it on to the users) and they are the ones who are going z:\council packets\2011\r12-15-11\111201m.docx Page 11 of 14 to have to "eat this fee." He noted that for a Town the size of Fountain Hills, over $30,000 in pass through costs would be very difficult to absorb. He said that one community, a smaller city, has passed a resolution to reject the bill and making any payments because they do not provide their own water and others are talking about it as well. He stated that this week he was informed that there are some discussions going on with people at the Legislature regarding the fact that a tweak or an amendment may be coming forward in the next Legislative session to address those communities that do not have water service of their own. He said that many complaints are being voiced regarding this and noted that the Town of Fountain Hills has no mechanism to pass this along to its constituents even if it wanted to because the Town doesn't provide any water or have any billing system in place with which to do so. Vice Mayor Dickey commented that there are no mechanisms for unincorporated areas of the State to contribute towards this. Mr. McGuire clarified that the Statute only allows ADWR to address municipalities and that is one of the shortcomings that is being addressed right now. He added that unincorporated areas are not within the scope of this nor are communities that do not have water providers. Councilmember Elkie commented on what Mr. McGuire has stated and said that he is reading the bill and the bills they pay at home state that if it they are not paid by a certain date late fees will be assessed and other sorts of things. He add ed that it is his understanding that there is nothing in the statute that says if it the bill is not paid by a certain due date an additional fee or anything along those lines will be assessed. Mr. McGuire replied that he is not aware of any penalty provision or enforcement provision. He said that the general concern is that when there is no remedy a solution is usually sought and the creativity of the Legislature is not something that most municipalities are willing to engage with at this point. Councilmember Elkie said with discussions going on that something creative might be coming out of the Legislature (perhaps some exceptions) he would hate to pay this and then find out later that there is an exception for those municipalities that don't charge for their own water. He added that it is no t a motion at this point but he does think that this is something that they should consider tabling. Councilmember Leger advised that he was thinking along those same lines himself and his question is there a billing due date for this invoice. Mr. Rees replied that the due date is January 16, 2012 -- there were two bills and one was for November and the other is for January. Councilmember Leger noted that they are basically looking at a $28,000 unbudgeted expense that has been mandated and it's looking like $31,000 – he asked for how long and whether it can increase. Mr. Rees responded that the amount can fluctuate (up or down) depending on what the balance is on ADWR's account at the end. They can only hold $7 million in their account. Councilmember Leger asked how they got to this point and who paid this in the past. Mr. McGuire replied that every State agency in the past has been funded through the State Legislature and the typical appropriations process provided funding for each of the agencies just like the Town appropriates for all of its departments. When the budgets became difficult to balance creative ways were sought to try and provide for services that are spread around the State. ADWR does a number of different things that involve development in the State and they perform a number of assured water supply tasks (they monitor things that cities and towns are required to do). He said they have a very strong regulatory directive as to what they do and the entities they regulate are mostly municipalities and unincorporated areas so he believes this was more of a thought about a fee for service that should be passed along to the users. He added that unfortunately, if an area does not have a water provider, it is not really a pass through fee and the calculation method didn't really tie to a cost to the State to provide the service as they would do with a typical service to z:\council packets\2011\r12-15-11\111201m.docx Page 12 of 14 see if it was a tax or a fee. He stated that he believes that it was just a very difficult budget time and they were looking for ways to fund State agencies outside of the normal budgetary process and looking for another revenue stream. Councilmember Leger said that Mr. McGuire discussed the fact that there may be some discussion occurring at the Legislative level (taking a look at this particularly for a Town such as Fountain Hills that doesn't have its own municipal water company). He asked if Mr. McGuire had any idea where that discussion is at and whether it is a priority. Mr. McGuire advised that anything that is discussed in December prior to the Legislative session starting up is mostly at the discussion level and every now and then there is a piece of legislation that is being crafted prior to the session starting. He said he has not heard that anything is being done pre-session for this particular issue. He noted that they typically find out something is being discussed or done when a Legislator contacts the League of Cities & Towns or one of the municipalities to talk about it in depth and try and get some technical expertise to draw from. He added that he has not heard of that level of discussion happening yet, it may well have but it hasn't made its way back to all of the inter- governmental affairs representatives at the cities and towns (the rumor network where everyone learns about the progress of bills and discussions). Councilmember Leger asked if it was possible to contact the Town's State legislator to see if this thing has legs and where it is at before they move forward on a motion and Mr. McGuire replied absolutely and that is what he thinks a lot of municipalities are doing. Councilmember Contino asked if it was possible to just put this on hold until they are forced to do something and said he doesn't think they should be paying out the money if it is going into a fund and they don't even know what will happen to it. Mr. McGuire stated that he would never advise the Council to viol ate a law but he thinks it certainly is prudent of the Town to table this issue at least until they get to the January billing timeframe to get some information and find out if anything has been introduced during the first couple weeks of the Legislature. Councilmember Contino commented that they are not going to be able to cut the Town's water off anyway. Mayor Schlum noted that a lot of good things were mentioned about this -- the Town does not provide water service and does not have a billing mechanism but the State decided they could just send the Town a bill for their State agency. He said a bad precedent is being set by them asking the Town to start funding State agency's budgets. He asked if there were any parts of the Town's budgets that they should be considering sending invoices to the State to help fund. He also asked whether any dialogue took place when Senate Bill 1624 was developed. He said it would have been nice to have gotten some feedback at a time when they could have responded and perhaps had an impact on this. Mr. McGuire advised that he doesn't know when the bill was put into final form but noted that the League was engaged in discussions regarding this early on. He added that last year's Legislative session was not a time for cities and towns to poke their heads up on virtually anything. The number of local government related bills that passed through the Legislature last year was extraordinarily high, even noted by the Governor in her veto letters and in a couple of approval letters. He believes the League was feeling a little "gun shy" based on the mood of the Legislature to apply their will towards local government and didn't want to pick another fight. Vice Mayor Dickey commented that they are not questioning the activitie s of the ADWR, what they do on a State level for water is necessary. She added that to the Mayor's point, the strike everything amendment (the language that is crossed out saying that the funding for these activities comes from the State's general fund ) and the language added that says that the department can assess and collect fees from each municipality in the State was added. The strike everything amendment by Representative Kavanagh was made on 3/31/11 so this particular Legislative Session was not one of those protracted ones as usual and she believes it was actually close to the 100 days so 3/31 was rather later. She added that as always the strike everything amendment doesn't go through the same vetting that a bill would go through. She stated tha t it was not the same bill when it came out and was discussed and 3/31/11 is the date she sees on it. She agreed with z:\council packets\2011\r12-15-11\111201m.docx Page 13 of 14 Councilmember Leger's suggestion regarding contacting the Town's legislators and discussing the best way to take care of the Town. She said that Legislators take a pledge not to raise revenues, taxes or fees for the State and the idea of actually taking that and being able to pay by passing it on to residents isn't really that comfortable anyway. She stated that she is okay with waiting to see if something along those lines is discussed so she would support tabling it at this time. Councilmember Leger MOVED to table this item and Councilmember Elkie SECONDED the motion. The Mayor asked if there was any further discussion on this item. Councilmember Elkie said that he believes it is important to clarify that they are tabling this for further investigation, review and perhaps staff communication with the Town's representatives to find out if there is going to be an exception (and then get some more information and clarification on that). Mayor Schlum stressed the importance of sharing with all of the Town's legislators the precedence of passing State agency costs down to municipalities (it is a poor precedent to set). The motion CARRIED UNANIMOUSLY by those present (5-0). Mayor Schlum thanked Mr. Rees for his presentation. AGENDA ITEM #14 - CONSIDERATION OF AUTHORIZING A BUDGET TRANSFER IN THE AMOUNT OF $28,017.21 FROM THE DEVELOPMENT SERVICES BUILDING SAFETY DIVISION SALARIES LINE ITEM TO DEVELOPMENT SERVICES, ENGINEERING WASH MAINTENANCE LINE ITEM. (See Agenda Item #13 above for discussion on this item.) Vice Mayor Dickey MOVED to table this item and Councilmember Leger SECONDED the motion. There were no citizens wishing to speak on this agenda item. The motion CARRIED UNANIMOUSLY by those present (5-0). AGENDA ITEM #15 – 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 #16 – SUMMARY OF COUNCIL REQUESTS AND REPORT ON RECENT ACTIVITIES BY THE INTERIM TOWN MANAGER/FINANCE DIRECTOR JULIE GHETTI. Interim Town Manager/Finance Director Julie Ghetti advised that staff will follow up regarding the Sonoran Conservancy and the Overlook Trail (talk to Parks & Recreation and look at the Town's policy for adopting trails and move that forward). Ms. Ghetti added that staff will also communicate with the League and the Legislature regarding any new legislation related to the ADWR recent activities. Ms. Ghetti noted that staff has been preparing for the December 13th Work Study Session where they are going to present the Council with the proposed 5-year Capital Improvement Plan (CIP) as well as options for the Pavement Management Program. She added that staff is also finishing up the year-end audit that will be presented to the Council at the next meeting on December 15th. Ms. Ghetti further stated that the Town has purchased a booth at the PTO Holiday Boutique on Saturday at the Middle School and they will be there in attendance (giving out candy canes and water bottles). z:\council packets\2011\r12-15-11\111201m.docx Page 14 of 14 Mayor Schlum thanked Ms. Ghetti for her comments and for the great job she is doing as the Interim Town Manager. The Mayor also commended the volunteers who did a great job decorating the Town H all and expressed appreciation for their ongoing service to the community. AGENDA ITEM #14 – ADJOURNMENT. Councilmember Contino MOVED that the Council adjourn the meeting and Councilmember Elkie SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). The meeting adjourned at 7:45 p.m. TOWN OF FOUNTAIN HILLS By_____________________________ Mayor Jay T. Schlum 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 Regular Session held by the Town Council of Fountain Hills in the Town Hall Council Chambers on the 1st day of December 2011. I further certify that the meeting was duly called and that a quorum was present. Dated this 15th day of December 2011. _____________________________ Bevelyn J. Bender, Town Clerk