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HomeMy WebLinkAbout1992.1001.TCRM.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL OCTOBER 1, 1992 A public meeting of the Fountain Hills Town Council was convened and called to order by Mayor Cutillo at 6:30 p.m.,Thursday,October 1, 1992,in the Fountain Hills Town Hall,located at 16836 E.Palisades Blvd.,Building C, Fountain Hills, Arizona. ROLL CALL - Following the pledge to the flag and the invocation by Pastor Glen Atchinson, Fountain Hills Presbyterian Church, roll call was taken. Present for roll call were the following members of the Fountain Hills Town Council: Mayor John Cutillo,Vice Mayor Charlie Fox,and Councihnembers Mike Minarsich,Bill O'Brien, Peg Tibbetts,Wally Hudson,and Frank Clark. Also present were Community Development Director Gary Jeppson, Town Engineer Randy Harrel, Town Attorney Bill Farrell, Town Manager Paul Nordin, and Town Clerk Cassie Hansen. Mayor Cutillo said that all items listed with an asterisk(*)were considered to be routine,non-controversial matters and would be enacted by one motion and one roll call vote of the Council. There would be no separate discussion of those items unless a Councilmember or member of the public so requested. If a Councilmember or member of the public wished to discuss an item on the consent agenda,they could request so prior to the motion to accept the consent agenda. The item would be removed from the Consent Agenda and considered in its normal sequence on the agenda. Typical items on the consent agenda are minutes, special event requests and easement abandonments. All materials and prior approvals received from the Town Marshal and Fire Chief(for special events)and all utilities and the Town Engineer(for abandonments)have been provided to and reviewed by the Council prior to the consent agenda vote. The consent agenda items were read by Mayor Cutillo. Councilman Clark requested agenda item#2 approving the minutes be removed from the consent agenda because he was not present at those meetings. Mayor Cutillo made a MOTION to approve as read. SECONDED by Councilwoman Tibbetts and CARRIED unanimously. A roll call vote was taken and the results were as follows: Mayor Cutillo aye Vice Mayor Fox aye Councilman O'Brien aye Councilman Hudson aye Councilman Clark aye Councilman Minarsich aye Councilwoman Tibbetts aye The roll call vote results were seven aye to zero nay votes. AGENDA ITEM#2-ACCEPTANCE OF THE MEETING MINUTES OF SEPTEMBER 3RD, 15TH,AND 17TH, 1992. Minutes of the Regular Session of the Town Council 10/01/92 Page 1of13 Councilman Hudson made a MOTION to approve the minutes of September 3. SECONDED by Councilwoman Tibbetts and CARRIED by six aye votes, Councilman Clark abstained. Vice Mayor Fox made a MOTION to approve the minutes of September 15 and 17. SECONDED by Councilman Minarsich and CARRIED by six aye4111) votes, Councilman Clark abstained. AGENDA ITEM#3-CONSIDERATION OF RESOLUTION 1992-28,ABANDONING WHATEVER RIGHT, TITLE, OR INTEREST THE TOWN HAS IN THOSE CERTAIN PUBLIC UTILITY EASEMENTS AND DRAINAGE EASEMENTS AFFECTING ALONG THE REAR LOT LINE OF LOT 42,BLOCK 1,OF PLAT 505-C FOUNTAIN HILLS, ARIZONA, AS RECORDED IN BOOK 158 OF MAPS, PAGE 42, RECORDS OF MARICOPA COUNTY, ARIZONA AND DECLARING AN EMERGENCY. This item was a part of the consent agenda. Mayor Cutillo made a MOTION to approve. SECONDED by Councilwoman Tibbetts and CARRIED unanimously. AGENDA ITEM#4-CONSIDERATION OF RESOLUTION 1992-29,ABANDONING WHATEVER RIGHT, TITLE, OR INTEREST THE TOWN HAS IN THOSE CERTAIN PUBLIC UTILITY EASEMENTS AND DRAINAGE EASEMENTS AFFECTING ALONG THE REAR LOT LINE OF LOT 46,BLOCK 1,OF PLAT 505-C FOUNTAIN HILLS, ARIZONA, AS RECORDED IN BOOK 158 OF MAPS, PAGE 42, RECORDS OF MARICOPA COUNTY, ARIZONA. This item was a part of the consent agenda. Mayor Cutillo made a MOTION to approve. SECONDED by Councilwoman Tibbetts and CARRIED unanimously. AGENDA ITEM#5-CONSIDERATION OF RESOLUTION 1992-30,ABANDONING WHATEVER RIGHT, TITLE, OR INTEREST THE TOWN HAS IN THOSE CERTAIN PUBLIC UTILITY EASEMENTS AND *40111) DRAINAGE EASEMENTS AFFECTING ALONG THE REAR LOT LINE OF LOT 7,BLOCK 4,OF PLAT 505-A FOUNTAIN HILLS, ARIZONA, AS RECORDED IN BOOK 158 OF MAPS, PAGE 40, RECORDS OF MARICOPA COUNTY, ARIZONA AND DECLARING AN EMERGENCY. This item was a part of the consent agenda. Mayor Cutillo made a MOTION to approve. SECONDED by Councilwoman Tibbetts and CARRIED unanimously. AGENDA ITEM#6-CONSIDERATION OF RESOLUTION 1992-31,ABANDONING WHATEVER RIGHT, TITLE, OR INTEREST THE TOWN HAS IN THOSE CERTAIN PUBLIC UTILITY EASEMENTS AND DRAINAGE EASEMENTS AFFECTING ALONG THE REAR LOT LINE AND ALONG THE WEST LOT LINE AND ALONG THE WEST LOT LINE OF LOT 6, BLOCK 12, OF PLAT 204 FOUNTAIN HILLS, ARIZONA, AS RECORDED IN BOOK 142 OF MAPS, PAGE 10, RECORDS OF MARICOPA COUNTY, ARIZONA;EXCEPT THE SOUTH TWENTY FEET OF THE EASEMENT ALONG THE WEST LOT LINE AND DECLARING AN EMERGENCY. This item was a part of the consent agenda. Mayor Cutillo made a MOTION to approve. SECONDED by Councilwoman Tibbetts and CARRIED unanimously. Minutes of the Regular Session of the Town Council 10/01/92 Page 2 of 13 „.....) AGENDA ITEM#7-CONSIDERATION OF RESOLUTION 1992-34,ABANDONING WHATEVER RIGHT, TITLE, OR INTEREST THE TOWN HAS IN THOSE CERTAIN PUBLIC UTILITY EASEMENTS AFFECTING ALONG THE NORTH LOT LINE OF LOT 1,BLOCK 7,OF PLAT 431 FOUNTAIN HILLS, ARIZONA, AS RECORDED IN BOOK 151 OF MAPS, PAGE 43, RECORDS OF MARICOPA COUNTY, ARIZONA; EXCEPT THE NORTH SEVEN FEET OF SAID EASEMENT AND DECLARING AN EMERGENCY. This item was a part of the consent agenda. Mayor Cutillo made a MOTION to approve. SECONDED by Councilwoman Tibbetts and CARRIED unanimously. AGENDA ITEM #8 - CONSIDERATION OF RESOLUTION 1992-32, DESIGNATING A CERTAIN VEHICLE FOR DUTY IN CONNECTION WITH SOCIAL SERVICE PROGRAMS AND ACTIVITIES OF A CONFIDENTIAL NATURE. This item was a part of the consent agenda. Mayor Cutillo made a MOTION to approve. SECONDED by Councilwoman Tibbetts and CARRIED unanimously. AGENDA ITEM#9 - CONSIDERATION OF THE SPECIAL EVENT REQUEST BY THE SCOTTSDALE KIWANIS FOR A 75 MILE BIKE TOUR WHICH WILL PASS THROUGH FOUNTAIN HILLS ON SATURDAY, OCTOBER 17, 1992. This item was a part of the consent agenda. Mayor Cutillo made a MOTION to approve. SECONDED by Councilwoman Tibbetts and CARRIED unanimously. (lb,, Mayor Cutillo called a recess to the regular session at approximately 6:38 p.m. AGENDA ITEM #10 - PUBLIC HEARING ON THE APPLICATION BY MCO PROPERTIES FOR "PLANNED SHOPPING CENTER OVERLAY ZONING DISTRICT" AND ZONING MAP AMENDMENT FOR PLAT 208. Mayor Cutillo called the public hearing to order and read the rules of procedure. Mr.Jeppson said MCO Properties had made application to the Town for an amendment to the zoning ordinance text and the zoning map. He said the proposed text change was for a planned shopping center overlay district. Mr.Jeppson stated that Fountain Hills had four platted areas that had a planned development with a common parking use. He said the proposed overlay shopping center district would allow differences from the requirements in C-2 zoning districts. One difference was that lots with 10,800 square feet or less,could use 100% building coverage. Another was that the parking for lots that size would be figured on the number of lots developed on the block. Mr. Jeppson explained that lots over 10,800 square feet would be subject to the standard C-2 parking regulations. Staff had recommended that 100%lot coverage for lots 10,800 square feet or less be allowed in Blocks 3, 4, 5, and 6. Mr. Jeppson said that staff had received a number of protests from property owners in Plat 208 and adjacent plats. He stated that the Planning and Zoning Commission recommended that the Council adopt the text change with some modifications. Mr. Jeppson stated that staff recommended amending the Zoning Ordinance to include the "Planned Shopping Center Overlay District." He said they also recommended a change in the parking regulations to require at lease 5%of the interior parking lot to be landscaped. Mr. Jeppson said the Commission also recommended that, if the application was approved, the Council negotiate a development agreement with MCO for the capital improvements to be made in the common parking areas. Minutes of the Regular Session of the Town Council 10/01/92 Page 3 of 13 Mr. Paul Gilbert,attorney for the applicant,MCO, stated that they were in full support of the Planning and Zoning Commission's recommendations, including all the stipulations. He said they were not there to discuss any topics except a land use decision,unless otherwise directed by the Town Council. Mr.Gilbert said that everyone had been allowed to speak at the Planning and Zoning Hearing and the Commission had recommended unanimously that the proposed text amendment be approved as proposed. He stated that they approved the re-zoning application with a vote of four-to-one. He stated that at the Planning Commission's Hearing the Commission suggested that the southern half of Plat 208 be dropped and not included as part of the re-zoning application. Mr.Gilbert said that staff had given a thorough, accurate narrative on the case. He stated that the County, the Court, the Town, and MCO agreed that 100%lot coverage on those lots in Plat 208 that were less than 10,800 square feet was appropriate. Mr. Gilbert said the common parking area could be used by those lot owners. Mr. Gilbert said that the approvals they requested were not any different from the original plan approved by Maricopa County in 1972. He stated that Plat 208 did have enough parking and they were just bringing forward something that had already been approved and what the property owners in that plat had agreed to. Mr. Gilbert stated that MCO had a vested interest and they would not have made the request if there was not sufficient parking. He said that nothing had been taken away from the purchasers of lots in Plat 208 that had been originally offered to them. Mr. Gilbert stated that there had never been any legal obligation for MCO to pave or fund paving of any of the common areas in Plat 208. He said they now proposed to pave all the common areas of the blocks involved in their request. Mr. Gilbert stated that the current property owners in 208 were requesting more than they were ever offered when they purchased the property. He said MCO did not think that was fair or equitable. Mr. Gilbert said that the Town and its legal counsel questioned whether the variance granted by the County in 1972 was in full force and effect. He stated that since it was not acknowledged by the Town, each property owner that wished to build to 100% on their lot, had to ask for a variance. Mr.Gilbert said that MCO thought that was a hardship and their request would remove that hardship. He said the opposition would argue that the County variance was flawed and that there was not enough parking. He said they would also say that the variance was void due to lack of performance and that there were no protections offered to the Town with the request. Mr.Gilbert addressed those four items. He stated that if the County Variance was flawed,every property owner bought into that flaw and knew what they were getting. Mr.Gilbert said no one complained at the time and everyone knew where the common parking areas were,in the center of the blocks,except for the large lots. He stated that no one had been able to demonstrate that there was not enough parking. Mr. Now) Gilbert stated that they were not requesting the same amount of parking because the Town had requested some landscaping and that would use some of the common area parking. He stated that the proposed spaces were also larger and that also reduced the number of parking spaces. Mr. Gilbert said that all the valley cities had unique ordinances or policies that permitted reduced parking in their downtown areas. He stated that MCO requested what was consistent with the original approval from the County and in keeping with other towns in Maricopa County. Mr. Gilbert said that the County had been contacted, verifying that the variance was in full force and effect up to the day that the Town incorporated. He said that MCO was willing to enter into an agreement with the Town to guarantee the commitments that they had made,and would agree to an approval with that stipulation. Mr. Gilbert presented three new stipulations from MCO. He said they would provide the common area improvements for Blocks 4 and 6 of Plat 208 within twelve months from the effective date of approval. Mr.Gilbert said the improvements were grading,paving,curbing,and landscaping. He said the landscaping would be what the Planning and Zoning Commission had required. Mr. Gilbert stated that within thirty-six months they would pave Block 5. He stated that there was currently no obligation by MCO to do the paving. Mr. Gilbert said that the second stipulation was that the existing sidewalk in Block 3, adjacent to the Avenue of the Fountains, would be extended from Lot 2 up to but not including Lot 14, within thirty days of the effective date of zoning. He stated that the third stipulation was that within sixty days from the effective date of zoning, they would put up a performance bond or an equivalent agreed upon security to insure the completion of the improvements. Mr.Gilbert stated that the Town should compare what commitments there currently were, which was none. He said that the proposal would bring about what was originally approved by the County. Mr. Gilbert stated that there would be many protections for the Town with the approval of the request, without which there would be none. Minutes of the Regular Session of the Town Council 10/01/92 Page 4 of 13 Mr. Eneas Kane, the attorney for the opposition, spoke next. He stated that he and Mr. Gilbert agreed on many items. He stated that the issue was what did the Town want to create as the standard for that area of town. Mr. Kane said that the Town's staff and legal counsel both agreed that the sixty-percent coverage under the existing C-2 ordinance was in effect as it existed currently. Mr. Kane said the Town had to decide what it wanted for that plat in the future. He stated that what Mr.Gilbert had presented supplied little support for perpetuating a re-creation of the 1972 ordinance. Mr.Kane said that he did agree with Mr.Gilbert,that what MCO had proposed,was not only a rezoning case,but an ordinance that would re-create the regulatory situation created after twenty years. He said that it was inappropriate to say that what had been done was what a master developer should have done in developing infrastructure to serve the sites. Mr. Kane stated that that was the issue, not what a 1972 Board of Adjustments did. He did propose that the Council consider what the 1972 Board would do if they were there now. Mr.Kane stated that he did not think that they would approve the request. He said that none of the cities and towns in the valley would permit a developer to do so little. Mr. Kane asked if the Town of Fountain Hills would accept a twenty year old standard or set a standard that would be in keeping with modern planning practices. He stated that modern planning required that all infrastructure be put in by ordinance. Mr. Kane said the standard of enforcement needed to be clearly defined in association with an ordinance. He stated that the 1972 infrastructure phasing and parking allotment were flawed and that the parking ratio was based on one-story buildings. He stated that it was the first time that he had seen the infrastructure phasing stipulations. Mr. Kane said it was better and different from the one proposed to the Planning and Zoning Commission. He stated that the Council should set up a process for the items that the developer was to do to be negotiated in public hearings. Mr. Kane said the lot coverage portion of the proposal called for 100% coverage unless the Council stated differently. He asked what would lead the Council to decide what would be appropriate in different instances. Mr.Kane said that that provision should be deleted. He stated that the parking allotment that would work needed to be a rational one and the exclusion of the one-acre lots made it clear that there was no more rational approach than there was in 1972. He said that the issues had been made more complex than they needed to be. Mr. Kane stated that the issue was whether the parking model from 1972 was an appropriate one for the Town of Fountain Hills to adopt for the next twenty years. He said that the Town needed to consider what standards were missing from the Ordinance and include them. Mr. Kane referred to a letter that had been given to staff and raised the issue of whether there was a three-quarter vote. He also questioned if it was a legal application,in the event that four of the eight blocks were withdrawn or not considered. Mr. Kane stated that if that was the case, there would clearly not have been the seventy-five percent. He requested that the question of a three-quarter vote was required and if the application was legal. Mr. Kane turned the floor over to his clients. Mr.Charles Vascellaro,Algonquin Court,identified himself and stated that he was happy to see the three items that MCO had proposed regarding the paving,landscaping,etc. He said he wanted it on record that one of the reasons that those items were in the proposal was that reasonable people got together and discussed the issues. Mr. Vascellaro said MCO and some of the property owners had met and negotiated the items. He stated that he did not want the Council to take the property owners personally because they were upset. Mr. Vascellaro said they were upset with Planning and Zoning because they should have thought of the bond,the minimum requirements. He stated he would have preferred that the meeting they were conducting be postponed so they could have further negotiated and contacted more of the property owners. Mr. Vascellaro said the amount of the bond was important and the enforcement of the agreement would be the responsibility of the Town. He said regarding the sixty to one-hundred percent lot coverage, no matter what the decision, everyone should be treated equally. Mr. Vascellaro stated that the clause that was currently in the proposal was very dangerous. He said it arbitrarily gave the Council or the Commission different allowances. Mr.Vascellaro stated that he was under the impression that the intent of the new proposal was to be done only to the unpaved areas that exist now. He said what was already paved, good or bad, would remain the same. Mr. Vascellaro stated that the amount of the bond was very important. He suggested getting three bids from paving contractors and to build in an increase for several years from now. Mr. Vascellaro stated that he had not had time to contact all one-hundred owners and therefore he could not say that his group supported the proposal. Minutes of the Regular Session of the Town Council 10/01/92 Page 5 of 13 The floor was returned to Mr. Gilbert for rebuttal. Mr. Paul Gilbert said the opposition stated that there had been piece meal development and they did not want that. He stated if the proposal was not adopted, that would be what they would continue to get. Mr.Gilbert said that the opposition wanted clear standards for infrastructure, there had not been any before the proposed ordinance. He stated that there also had not been a method for the Town to enforce any of the issues. Mr. Gilbert said there was nothing to enforce currently but with the ordinance, there would be issues to enforce and a method of enforcement. He stated the developer was offering everything possibly available to a Town to make the commitments enforceable. Mr.Gilbert said the opposition stated that they did not have enough parking and they also requested the large lots be allowed the same parking space allotment as the smaller lots. He said there was a contradiction there. Mr.Gilbert stated that a decision recently upheld by the court stated that lots in excess of 10,800 square feet were never entitled to count the common area parking toward their required parking. He said that it had been that was since day one. Mr. Gilbert said the Planning and Zoning Commission stated they would rely on the development agreement to obtain the protection that the opposition said they were not cognizant of. He stated that the Planning and Zoning Commission did listen to the voice of the people. Mr. Gilbert asked the Mayor for permission to request people in the audience that were in favor of the application to stand. Mayor Cutillo answered affirmatively. The floor was g given to Mr. Kane for rebuttal. Mr. Kane said that the Declaration of Reservations was adopted in 1972 and that it required the plat to be improved and turned over to an association of owners within five years. He stated that the Judge's decision in the Abatemarco case actually stated that the more restrictive of the D.O.R.'s or the variance granted in 1972,controlled whether the parking in the common area satisfied the zoning requirement. Mr.Kane said the 1972 variance went away when the Town incorporated. He said the D.O.R.'s and the non-existent 1972 variance, stated that all property owners, including one-acre lot owners, had an unequal and undivided right to use the common area. He said there were not clear standards for infrastructure in the proposed Ordinance. Mr. Kane sited other problems that had not been addressed yet. He stated that he did not feel that the negotiations should take place in the presence of the Council. Mr.Kane said they were told that MCO had no obligation to develop any of the area and anything they offered was more than what they had to do. He stated that that should not be the basis for the development standard for that area of Fountain Hills for the next twenty years. "141) Mayor Cutillo then called for those from the public that wished to speak in favor of granting the request. Mr. Stan West said he represented the Fountain Hills contingent of the Governmental Affairs Committee of the Scottsdale/Fountain Hills Association of Realtors. He said there was no one on the Committee from Scottsdale. Mr. West stated that after a review of the history of Plat 208 regarding the zoning,consideration of the current opinions of various lot owners in 208, and a consideration of the people in Fountain Hills in general, the Committee urged the Council to pass the Ordinance as presented. Mr.Tim Yoder,El Lago Boulevard,said he had been involved with the Committee of Architecture for eight years. He referred to a plan that Mr.Vascellaro had designed and presented in Plat 208 during the time of his participation with the Committee. Mr. Yoder stated that MCO had been pm- citizens of Fountain Hills over the years and he thought MCO had been fair that time also. He said he wanted to make it clear that he was not an employee of MCO and did favor the proposal. Mr. Yoder stated that it had been inferred that only employees favored the Ordinance. Mayor Cutillo then called for those in opposition to the Ordinance. Mr.Jerry Kirkendahl stated that he was not as opposed to the request as he was before. He stated that they appeared to be offering some things that had not been offered before. He said that they were told that there would be parking and that the association would pay to maintain it, not to install it. Mr. Kirkendahl stated that they were very strict when he built his building. He said they only allowed him so much usable square footage,which made sense to him. Mr. Kirkendahl stated that there would not be nearly enough parking if the Town permitted three-story construction and 100%lot coverage. He said he was encouraged by the progress in the proposal that he had seen and just suggested they reconsider the permitted coverage. Mr. Mike Abatemarco, 16316 Jacklin Drive, said that Plat 208 was platted in 1971 and read from the D.O.R.'s. He said that lot owners had been accused of asking for more than they were initially entitled to. Mr. Abatemarco stated that in 1971 all the lot owners were entitled to the same thing, an equal and undivided interest in the common area. He said the owners were entitled to it, were assessed on it, and paid taxes on it. Mr. Minutes of the Regular Session of the Town Council 10/01/92 Page 6 of 13 Abatemarco stated that the Council should protect their rights. He said that within five years of recordation, the fikape control was to have been turned over. Mr. Abatemarco stated that the 1972 variance allowed 100% coverage for one story. He said the parking ratio was based on one per two-hundred,which meant there should have been 633 spaces for one-story construction. Mr. Abatemarco stated that that was never done and it could not be achieved. He said if they allowed up to three-story construction, there would be up to three times the problem. Mr. Dave Dawkins, 16548 Inca Avenue,did not speak in opposition to the proposal,but as one of the "gray panthers" of the real estate business. He stated that he had been a Realtor for thirty years and twenty of those had been in Fountain Hills. Mr. Dawkins addressed what had happened in the past thirty years in the shopping area in old Scottsdale. He stated that the city of Scottsdale had spent tax payer money and built many parking areas to solve parking problems created by the development of the small lots. Mr. Dawkins stated that the northwest corner of Shea and Scottsdale Roads was almost an identical format to our Plat 208. Mayor Cutillo gave Mr.Kane time to summarize. Mr.Kane stated that development that was dictated by the market was dangerous. He said there should be standards for development to carry its own burden of developing infrastructure. Mr.Kane stated that it was a mistake to let the market control development until there was a problem. He said the only reason there was not a problem in 1992 was the low level of build-out. Mr.Kane stated that there would be a problem someday,especially if the development continued as it had,with one and two-story buildings. He said the other problem with letting the market dictate was that in downtown Fountain Hills, MCO had a lot of influence in that market. Mr. Kane stated that the Town should set the minimum standards and the vision for the future. He said he thought that one of the moving forces behind incorporation was to control the Town's own destiny and set its vision. Mr. Kane stated that Plat 208 was an important place for that to happen. He said that they had submitted eighty-six protests to the staff and wondered if they were sufficient to cause a three-quarter vote. Mr. Kane also asked the procedural status of whether all eight blocks were included in the application. He stated that Mr. Gilbert had indicated that they had not caused withdrawal of four blocks. Mr. Kane wanted clarification on whether the Mayor and Council were considering all eight blocks. Mr. Gilbert summarized next, stating that the three stipulations would replace the twenty-five percent paving requirement. He said the Neil George plan that they presented would be done at the same time they did the block paving. Mr. Gilbert stated that the Council had been told that if Plat 208 was built out and allowed three storied buildings,there would be many repercussions. He said that was only a scare tactic. Mr.Gilbert stated that MCO's Architectural Control Committee and they could control that type of growth through the Declaration of Reservations. Mr.Gilbert stated that the current control was to allow only two-story buildings. He stated that two-story retail was not successful any place in the valley. He did not think it would be successful in Fountain Hills either. Mr.Gilbert stated that Mr. Abatemarco made references to issues that were promised to him in 1971. He said that Mr. Abatemarco did not buy his lot in 1971 and he also did not purchase it from McCullough. He stated that the representations were not representations that were made to him and further,all the requirements he spoke of were already on the property. Mr. Gilbert stated that Plat 208 was a valid, existing subdivision. He said it was not something that could be wiped clean and start over. Mr. Gilbert stated that they agreed that the 1972 parking standard should not be considered in 1992. He said that parking standards had been reduced in every city's downtown area in the Phoenix valley since 1972. Mr. Gilbert stated that if the Council approved the proposal,the Town would get the opportunity to take a non-vibrant downtown growth area and give it an opportunity to grow in the manner that the community had always envisioned. He said if the plan was not adopted, the Town would get more of the same development, which had not been positive. Mayor Cutillo turned the floor over to Ms. Lois Grate as she missed her three minute turn. Ms. Grate stated that she was a concerned citizen who had been in Fountain Hills since 1973. She asked the Council to table the request until more definition was made. Ms.Grate stated that she did not think any more progress had been made than was made at the Planning and Zoning meeting. She said people needed more time to develop answers and guidelines. Mayor Cutillo closed the public hearing closed at approximately 8:06 p.m. He reconvened the regular session at approximately 8:06 p.m. kiimov Minutes of the Regular Session of the Town Council 10/01/92 Page 7 of 13 AGENDA ITEM#11 - DISCUSSION AND CONSIDERATION OF ORDINANCE 92-09, ADOPTING THE "PLANNED SHOPPING CENTER OVERLAY ZONING DISTRICT" TEXT AMENDMENT TO THE ZONING ORDINANCE OF THE TOWN OF FOUNTAIN HILLS. Councilman Hudson asked Mr.Jeppson what the area of Block 3, Lots 2, 3,and 4 were. Mr.Jeppson stated that they were 6,000 square feet each. Councilman Hudson asked the size of several other lots in the same block and Mr. Jeppson replied. He answered various questions from the Council on specific sizes of lots in Plat 208. Councilman Clark asked Mr. Nordin to clarify what the bond amount would be. Mayor Cutillo stated that Councilman Clark's question pertained to Agenda Item#12 and stated that the Council would discuss that issue when on that agenda item. Mayor Cutillo stated that the Council was currently discussing adopting an overlay for a planned shopping center and it had nothing to do with Plat 208. Councilman O'Brien said there were other planned overlay districts in Fountain Hills that were not addressed in the Zoning Ordinance and he asked if they were a part of the Zoning Ordinance. Mr.Jeppson said it was his understanding that they were included.Councilman O'Brien stated that if the Plat 208 variance had disappeared,he wondered what the status of the other ones was. Mr.Farrell stated that Councilman O'Brien referred to Residential Unit Planned Developments that had been granted by the County Planning and Zoning Commission and the County Board of Supervisors. He said they were normally granted during a Hearing such as the one the Council had that night. Mr. Farrell stated that those R.U.P.D.'s were not variances. He stated that if the two conditions in the variance were to have been found in the County's zoning decision, the issue probably not have to be addressed now. Mr. Farrell said the County Board of Adjustment had granted the variance after zoning had already been placed on the property. He explained that the difference between the issue that evening and an R.U.P.D. was that the R.U.P.D.'s were considered legislative zoning that survived incorporation. He stated that the variances were a Board of Adjustment action and that was quasi-judicial and that had been the source of the differing legal opinions. Mayor Cutillo made a MOTION to adopt Ordinance 92-09, accepting the Planned Shopping Plaza Overlay District. SECONDED by Councilman Minarsich. Councilman O'Brien said he wanted to amend the motion. Mr. Farrell stated that there had been discussion regarding Section 40.5.E,concerning maximum lot coverage. He said if the Council had any questions on it, it would be the time to clarify it and he read the verbiage. Councilman O'Brien stated that he wanted to AMEND the motion and strike the phrase in Section 40.5.E,#1, that read "Unless the lesser percentage not less than sixty-percent is provided for by the Council." SECONDED by Councilman Hudson. The amended motion CARRIED unanimously. Councilwoman Tibbetts stated that when they referred to total lot, that meant the legal description and the platted area that was purchased,to the lay person. She said that that normally included the easements and people accepted that. Councilwoman Tibbetts stated that that was not made clear in the verbiage. Mr.Jeppson stated that there were some lots that had no easements on them and therefore would be allowed to build the entire lot. He said those that had easements would not be permitted to build on the easements unless they were abandoned. Councilwoman Tibbetts stated that she objected to the terminology of calling the buildable area the total lot area. Mr.Farrell stated that the verbiage in Section 40.5.E,#1 and#2,be changed from total lot area to buildable. Mayor Cutillo changed the wording in his original motion as requested and seconded by motion. Councilman Minarsich stated that he had an objection to seconding the original motion because Mr. Farrell stated that the current verbiage read all right. Mayor Cutillo stated that the original motion stood. The original motion CARRIED unanimously. AGENDA ITEM#12-DISCUSSION AND CONSIDERATION OF ORDINANCE 92-10,AMENDING THE ZONING MAP OF THE TOWN OF FOUNTAIN HILLS ZONING ORDINANCE TO PLACE "PLANNED SHOPPING OVERLAY ZONING DISTRICT" ON BLOCKS 1-8 IN PLAT 208. Mr. Farrell requested that he be allowed to address Mr. Kane's questions on signatures and legal protests. Mr. Farrell said there had been a question on whether the application had been presented properly before the Mayor and the Council and the Planning and Zoning Commission,based on a seventy-five percent rule found in Fountain Hills' Zoning Code. He said that rule was traditionally not involved in most traditional zoning cases. Mr. Farrell stated that normally, a single owner would make application. He stared that when there were multiple owners, to avoid Minutes of the Regular Session of the Town Council 10/01/92 Page 8 of 13 the hardship of one-hundred percent, the Council adopted a rule that a minimum of seventy-five percent of the owners had to sign the application. Mr.Farrell said that the original application that was made covered Blocks 1-8 in Plat 208 and the applicant's ownership in those eight blocks was more than 75%of the area. He stated that staff's recommendation to the Council was that the applicant met the 75% rule,considering all eight blocks. Mr. Farrell said the second question was if three-quarters of the Council vote would be required to consider the second agenda item. He stated that if twenty percent or more of the property owners either within Plat 208 or on any of the four adjacent sides, filed a legal protest, the code provided that the protest had to be filed by noon on the day of the hearing. Mr.Farrell said they had received many protests before noon that day and staff had separated them into property owners in Plat 208, of which those received did not represent 20% of the Plat. He said the second group was the area south of Plat 208 and that was a difficult number to figure. Mr. Farrell stated that, without signature verification, there was 17-21% of the adjacent plat. He said that if the applicant did not receive six of the seven votes from the Council, staff would re-count the protests received from the adjacent area to the south. Mr.Farrell said the third issue was the Ordinance. He stated that the Planning and Zoning Commission recommended that the Council adopt the Ordinance but only apply it to Blocks 3,4, 5,and 6 and not apply it to Blocks 1,2, 7,and 8 in Plat 208. Mr. Farrell said that was why the Ordinance was prepared to read the way it did, and the blocks not mentioned had not been removed by the applicant. Councilman Clark asked Mr. Nordin what the bond amount would be. Mr.Nordin stated that the Town would depend on an Engineer's estimate that would be reviewed by the Town's Engineer. Councilman Clark asked if the amount recommended would be the amount set down and Mr. Nordin answered affirmatively. Councilman Clark said he did not think a development agreement was a part of the issue,but to be developed subsequent to the approval of the Ordinance. Mr.Nordin stated that the Ordinance would be passed with stipulations attached to it. Mr. Farrell said that if the Council granted the amendment with the stipulations,it would bind the applicant to produce the bond. Councilman Clark stated that there had been reference made to deeding the common areas to the association and asked if that would be part of the agreement. Mr.Farrell stated that the Town did not have jurisdiction or the legal authority to force that type of action. Councilman Clark redirected his question to Mr.Gilbert. Mr. Gilbert said it was the applicant's intent to deed the common area to the Property Owner's Association within a twelve month period after the adoption of the ordinance. Councilman Minarsich made a MOTION to adopt Ordinance 92-10 as written with the attached applicant proposed stipulations that were received October 1, 1992, with the wording changes on item #2 from Lot 2 up to but not including Lot 14. SECONDED by Councilman Clark. Mr.Farrell said the Ordinance was prepared from the Planning and Zoning Commission minutes, in Section 1,the last three lines talked about contingent upon the successful execution of the Development Agreement and in light of Councilman Minarsich's motion,recommended the Council change Section 1,to delete that and substitute the stipulations that were presented that evening. Mayor Cutillo asked if he meant delete it and Mr. Farrell said yes. Mr. Farrell explained that there were three zoning stipulations, the third one of which required the bond that would be a part of the approval, rather than waiting for some time in the future to negotiate a development agreement, you would have the three stipulations. He also said that the Development Agreement itself might not ever come to fruition,it might not be needed or necessary,but the three conditions,those opposed found some satisfaction in the time schedule of the bonding. Mr.Farrell stated that he thought Councilman Minarsich's motion was to include the three stipulations that were presented that evening. He said he wanted to see him remove the last three contingencies and substitute the three stipulations. Councilman Minarsich stated that he needed clarification because it was his understanding that the stipulations were in addition to or separate from the development agreement. Mr. Farrell said that was correct, but as it was worded from the Planning and Zoning Commission, it would not become effective until there was a development agreement. Councilman Minarsich WITHDREW his original motion and Councilman Clark WITHDREW his second. Councilman Minarsich asked for the verbiage from Mr. Farrell. Councilwoman Tibbetts asked if the Council was eliminating the possibility of a development agreement. Mr. Farrell said that a development agreement statute was devoid of the word zoning anywhere in it. He said persons could enter into a development agreement without rezoning property. Mr.Farrell said he would not want to see a zoning ordinance that was contingent upon a development agreement. He stated that it did not preclude the Town's opportunity to do so but he did not want to see it with the zoning code. Councilman Minarsich made a MOTION that the Council accept Ordinance 92-10, with the following change, in Section 1,that the sentence containing the line"contingent upon the successful execution of a development agreement with owners of Parcels D,E,F,and G,in Plat 208 to complete site improvements on these parcels"be stricken and Minutes of the Regular Session of the Town Council 10/01/92 Page 9 of 13 inserted in that spot to be the words "together with the three stipulations submitted October 1, 1992, by the applicant." SECONDED by Councilman Clark. Councilman O'Brien made a MOTION to TABLE the motion Nwstir because the three stipulations were given to the Council ten minutes before the meeting and there was little or no knowledge that the other property owners had sufficient time to respond to them. He stated that he would be happy to consider a re-vote to pass the Ordinance as it was originally worded with some contingencies,but if that was not legal,he was not sure that those three stipulation were the best agreement that could be made. Mayor Cutillo called for a second and the motion DIED due to lack of a second. Councilman Minarsich stated that he received the stipulations at 3:30 p.m. that day and he said he understood that there had been much laboring over the issue by a lot of people. He said he agreed with to Mr. Kirkendahl's point on the parking issue,that three story development could not be supported by our population. Councilman Minarsich stated that he was a Capitalist and did not know that anyone would actually construct a lot of three-story buildings in Plat 208. He said, in weighing the pros and cons of the issue, he had to conclude as did Mr. Gilbert, did the buyers know what they were buying when they bought it. Councilman Minarsich stated that he believed the answer was yes and with the proposed stipulations,they were getting the improvements that they had looked for for a long time. He said he thought that if everyone in the Town worked together, they could take the issue and move forward in Plat 208 instead of allowing it to remain in its present condition, which, without the proposal, was exactly what would happen. Councilman Minarsich stated that he did support the Ordinance. Vice Mayor Fox said it was a shame that as Mr. Vascellaro referred to, that maybe things had to be or were said that were said or written in anger and published,because he didn't think anyone on the Council brought a rubber stamp to the meeting. He said they had labored over the issue. Vice Mayor Fox stated that he wanted to see the Town and the property owners benefit from the developed 208 plat. He said he had always thought that Plat 208 would be a very unique part of the Town and still hoped it would be. Vice Mayor Fox stated that his concern on the issue was that staff had worked on some of the negotiations with the property owners and they, along with the applicant, had feverishly reviewed several things. He said he applauded all their efforts. Vice Mayor Fox stated that he did not think that board had the right to change contracts. He said that everyone, including the applicant,when they bought their property,knew what they had when they went into it. Vice Mayor Fox said the concern he had was,if nothing was done,it would stay the way it had been pictured,as an eyesore to the community,a detriment to the property owners. He did not think that the Board had a right to force anyone to give up their land whether it be the applicant or the current property owners. Vice Mayor Fox stated that he thought it was a positive step in going forward. He said that it would be good if the property lines on the lots could be removed and the process could start over again. He stated that the problem was that the Council did not have the luxury, short of going to the tax payers and asking them to join in a financial obligation, which he did not want to do. Vice Mayor Fox stated that hopefully everyone would join together on the project. Councilwoman Tibbetts stated that she was delighted to hear Mr. Vascellaro speak to the fact that there had been a lot of communication between the two view points on the question. She said she did not think that there was a person within earshot of her voice that was not looking for the same goals for that area. Councilwoman Tibbetts said that people were starting to work together toward a solution. She stated that she viewed the progress as the first step toward the goal that every citizen in Fountain Hills was looking for. Councilman O'Brien agreed with Councilwoman Tibbetts but said he saw no harm done in postponing the decision. He stated that he wanted more property owners contacted before the decision was made. Councilman Clark stated that no agreement should be made without negotiation. He said there should be give and take on both sides and he thought that had happened. Councilman Clark stated that the approval of the Ordinance would create a positive situation for everyone in Fountain Hills. He said the approval would put in place what was necessary for the property owners and association of Plat 208 and the Town to work together constructively to plan and develop the downtown area. Mayor Cutillo stated that he agreed with all the comments. He said he had lived in Fountain Hills for fifteen years and one of the most common questions was when would something be done with Plat 208. Mayor Cutillo stated that delaying the progress was not the practical thing to do at that time. He said he would support passing the proposal. Mr.Nordin said staff recommended a roll call vote. Mayor Cutillo called for a roll call vote. The results were as follows: Minutes of the Regular Session of the Town Council 10/01/92 Page 10 of 13 Mayor Cutillo aye Vice Mayor Fox aye Councilman Minarsich aye Councilwoman Tibbetts aye Councilman Clark aye Councilman Hudson aye Councilman O'Brien nay The roll call vote results were six aye to one nay vote. Mayor Cutillo called for a short recess at approximately 9:00 p.m. Mayor Cutillo resumed the regular session at approximately 9:09 p.m. AGENDA ITEM#13 - MONTHLY REPORT BY MAGISTRATE SHOOB. Magistrate Shoob stated that with the full-time Marshal on staff and the full-time Court Officer,Town code violations were being cleared up. He said those things were beginning to come before the court. AGENDA ITEM #14 - REPORT BY IVAN JOHNSON ON THE DIMENSION CABLE UPGRADE PROJECT. Mr.Harrel reported that five of the six agreement areas had been tested and the test date of the sixth date had been set. He stated that with the sixth testing,Dimension would have met the license agreement requirement regarding the upgrading project. Mr. Harrel turned the meeting over to Mr. Ivan Johnson for additional information. Mr. Johnson,Vice President of Public Affairs,introduced Mr.Tom Flaan,the Supervisor of Government Relations,and Mr.Jerry Anstein,who had managed the Fountain Hills rebuild. Mr.Johnson stated that the deadline for completion of the project was the day before and they had met the deadline. He reviewed the project's history and said they had rebuilt the system for a sixty channel capacity and forty-three channels initially activated. Mr.Johnson said the rebuilt system was to reach 5,285 dwelling units. He complimented the Town's staff. Mr.Johnson informed the Council regarding the Government Cable Channel. Mr.Johnson said they had the final walk-through and the proof of performance to be done on the system. He explained that twenty locations throughout the town would be randomly tested. Mr. Johnson said that they had arranged for payment of cable television bills at any Valley National Bank Branch. He stated that in July 1992 they changed to three levels of service and explained them. Mayor Cutillo asked if the Rectory at the church had gotten cable. Mr. Nordin stated that it had not. AGENDA ITEM#15 - CONSIDERATION OF APPOINTED INDIVIDUALS TO FILL 4 SEATS OF THE EXPIRING TERMS OF THE PLANNING AND ZONING COMMISSION. Mayor Cutillo stated that through the Town Code, he had the authority to appoint people to the Board, with the approval of the Council. He said his appointments were as followed: James Funk, Stan Connick,Sam Cioffi,and Tom Henry. Mayor Cutillo made a MOTION to accept those names. SECONDED by Councilman O'Brien. Councilman Clark AMENDED the motion. He stated that the Council should re-appoint both of the incumbents. Councilman Clark stntx l that the Commission had an extremely hard year and performed very well. Councilman Clark moved to replace Mr. Henry's name with Mr. Slater's name. Councilman Hudson SECONDED the amendment. Mayor Cutillo called for a vote on the amendment. A roll call vote was taken and the results were as follows: Minutes of the Regular Session of the Town Council 10/01/92 Page 11 of 13 Councilman Hudson aye Vice Mayor Fox nay Councilman Clark aye Councilman Minarsich nay Councilwoman Tibbetts nay Councilman O'Brien nay Mayor Cutillo nay The amended motion FAILED with five nay votes to two aye votes. Mayor Cutillo called for a vote on the original motion. Motion CARRIED with six aye votes to one nay vote, Councilman Clark casting the nay vote. Mayor Cutillo said the Council appreciated all the Commission members'service. He suggested that staff prepare something to commemorate Mr. Slater's service,as well as the two retiring members. AGENDA ITEM #16 - CONSIDERATION OF RESOLUTION 1992-33, PROVIDING FOR THE EXECUTION OF DEPARTMENT OF PUBLIC SERVICE DPS CONTRACT NO.92-836 AND DIRECTING THE EXECUTION OF THE SAME BY MARSHAL STEVEN C. GENDLER OF THE FOUNTAIN HILLS MARSHAL'S DEPARTMENT FOR THE PURPOSE OF OBTAINING A CRIMINAL JUSTICE ENHANCEMENT FUND AWARD FOR THE INSTALLATION OF MOBILE DATA TERMINALS, AND DECLARING AN EMERGENCY. Councilman Minarsich made a MOTION to adopt Resolution 1992-33, as read. SECONDED by Councilwoman Tibbetts and CARRIED unanimously. AGENDA ITEM#17-DISCUSSION AND POSSIBLE ACTION ON DIRECTING THE TOWN MANAGER TO FORMULATE AN ORDINANCE DEALING WITH NOISE CAUSED BY NEW CONSTRUCTION IN RESIDENTIAL AREAS. Councilman Hudson said the Council voted against any noise ordinance approximately one month ago. He stated that there had been other requests for a control on construction noise. Councilman Hudson said that he felt it was the Council's responsibility. He addressed all the various ordinances the Town had adopted and stated that there was none to address construction noise or times permitted. Councilman Hudson said he did not agree that the contractors should police themselves. He stated that he would like to have an ordinance presented. Councilman Minarsich said that,two months ago,during the last discussion of the issue,the Council decided to wait six months, not two months. He stated that he thought the Contractor's Association had been doing an outstanding job following up on the noise complaints. Councilman Minarsich said that he had a home under construction next door to him and the construction noise did not bother him. He stated that that was progress and the type of control would not matter,there still would be construction noise. Vice Mayor Fox stated that he had reviewed the complaints the Town had received and just the construction noise complaints. He said there were fourteen different complaints. Vice Mayor Fox stated that a complaint could not be closed without the agreement and permission of the complainant. He said that all the complaints had been closed and they were not repetitive complaints. Vice Mayor Fox said he thought the Town and contractors were doing a great job by not regulating. He said Fountain Hills was exceptionally quiet early in the mornings and people had to keep in mind that any noise was intensified. Councilman O'Brien said he did not know when the Council had agreed to re-address the issue. He stated he would prefer not to regulate but would not hesitate doing so if it was necessary. Councilman O'Brien said he did not think construction noise should be permitted before six in the morning. Councilwoman Tibbetts stated that she would like to hear from Marshal Gendler and the contractors that were in the audience. Marshal Gendler said the complaints that had been received had been resolved by working through the Contractor's Association. Mr. Pittsenbarger stated that the contractors appreciated the opportunity to police themselves. He said the Association had two volunteers that had gone out on Minutes of the Regular Session of the Town Council 10/01/92 Page 12 of 13 complaints. Mr.Pittsenbarger stated that Marshal Gendler was going to speak at the next Contractor's Association meeting. He added that since winter was upon them,it was too dark to start construction before six in the morning and soon it would be seven o'clock. Mr.Pittsenbarger stated that when specific times were imposed on contractors in the summer,it became a real health hazard. Councilwoman Tibbetts asked if there was a difference in cooperation between local contractors and subs or out-of-town contractors. Mr.Pittsenbarger stated that there had not been any problems with out-of-towners since the Henry's problem. Marshal Gendler stated that if he received a complaint on a contractor,he would go to the site and if they did not have a Fountain Hills business license, he would stop the work until they went into the office that morning when it opened at 8:00 a.m. Mayor Cutillo stated that he agreed that the Town should not over regulate the businesses and citizens. AGENDA ITEM#18 - CALL TO THE PUBLIC (PUBLIC COMMENT IS ENCOURAGED BUT PLEASE BE ADVISED THAT THE COUNCIL HAS NO ABILITY TO RESPOND OR DISCUSS MATTERS BROUGHT UP DURING THE CALL TO THE PUBLIC AS SUCH DISCUSSION IS PROHIBITED BY THE ARIZONA OPEN MEETING LAW.) Mayor Cutillo made the call to the public. There was no discussion. AGENDA ITEM#19 - ADJOURNMENT. Mayor Cutillo called for a motion to adjourn. Vice Mayor Fox made a MOTION to adjourn. SECONDED by Councilwoman Tibbetts and CARRIED unanimously. The Town Council adjourned at approximately 9:47 p.m. By: M. Cu o, Mayor ATTEST: Cassie B. Hansen, Town Clerk PREPARED BY- Lari L. Bra her, Secretary CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular Meeting held by the Town Council of Fountain Hills on the 1st day of October 1992. I further certify that the meeting was duly called and that a quorum was present. DATED this S day of November 1992. Cassie B. Hansen, Town Clerk Minutes of the Regular Session of the Town Council 10/01/92 Page 13 of 13