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HomeMy WebLinkAbout2001.0301.TCREM.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR AND EXECUTIVE SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL March 1,2001 L Mayor Morgan called the regular session of the Town Council to order at 5:30 p.m. Councilwoman Fraverd MOVED that the Council convene the executive session and Councilwoman Ralphe SECONDED the motion, which carried unanimously. AGENDA ITEM#1 - PURSUANT TO A.R.S. §38-431.03.A.4 AND A.R.S. 38-431.03.A.7, VOTE TO GO INTO EXECUTIVE SESSION FOR: DISCUSSION OR CONSULTATION WITH THE ATTORNEYS OF THE PUBLIC BODY IN ORDER TO CONSIDER ITS POSITION AND INSTRUCT ITS ATTORNEYS REGARDING THE PUBLIC BODY'S POSITION IN PENDING OR CONTEMPLATED LITIGATION OR IN SETTLEMENT DISCUSSIONS CONDUCTED IN ORDER TO AVOID OR RESOLVE LITIGATION; SPECIFICALLY TOWN OF FOUNTAIN HILLS V. MCO PROPERTIES (EMINENT DOMAIN); MCO PROPERTIES V. TOWN OF FOUNTAIN HILLS (LITIGATION REGARDING THE SUBDIVISION ORDINANCE); AND CONTEMPLATED LITIGATION FOR RECOVERY OF INVESTMENT FUNDS; AND FOR DISCUSSIONS OR CONSULTATIONS WITH DESIGNATED REPRESENTATIVES OF THE PUBLIC BODY IN ORDER TO CONSIDER ITS POSITION AND INSTRUCT ITS REPRESENTATIVES REGARDING NEGOTIATIONS FOR THE LEASE OF REAL PROPERTY--CURRENT TOWN HALL COMPLEX,RESPECTIVELY. AGENDA ITEM#2- RETURN TO REGULAR SESSION Mayor Morgan recessed the executive session of the Town Council at 6:25 p.m.and convened the regular session of the Town Council at 6:30 p.m. Following the pledge to the flag and the invocation by Pastor Scott Van Lanken of the Fountain Hills Assembly of God Church, the roll call was taken. OLL CALL - Present for roll call were the following members of the Fountain Hills Town Council: Mayor Sharon Morgan,Vice Mayor John Wyman,and Councilmembers Leesa Fraverd, Sharon Hutcheson,John McNeill,John Kavanagh, and Susan Ralphe. Also present were Town Manager Paul Nordin,Town Attorney Bill Farrell,Interim Town Engineer Tom Ward,Director of Administration Cassie Hansen, and Director of Community Development Jeff Valder. Mayor Morgan read the consent agenda items. AGENDA ITEM#1 - CONSIDERATION OF APPROVING THE MEETING MINUTES OF FEBRUARY 15, 2001. AGENDA ITEM#2- CONSIDERATION OF AWARDING THE BID FOR REPLACEMENT OF THE POWER SERVICE PANEL IN TOWN HALL BUILDING B TO D&D ELECTRIC IN THE AMOUNT OF$26,450. THIS PANEL REPLACEMENT IS PHASE ONE OF THE UPS (UNINTERRUPTED POWER SUPPLY) INSTALLATION PROJECT REQUIRED TO COMPLETE BUILDING B'S STATUS AS THE TOWN'S EMERGENCY OPERATION CENTER. AGENDA ITEM#3- CONSIDERATION OF RESOLUTION 2001-11 ABANDONING WHATEVER RIGHT, TITLE, OR INTEREST THE TOWN HAS IN CERTAIN PUBLIC UTILITY AND DRAINAGE EASEMENT LOCATED ALONG THE EASTERLY PROPERTY LINE,RETAINING THE SOUTHWESTERLY 20' OF THE EASTERLY 10' PUBLIC UTILITY AND DRAINAGE EASEMENTS FOR EXISTING AND POTENTIAL FUTURE UTILITY BOXES, OF PLAT 212, BLOCK 14, LOT 23 (14405 DRURY LAND) AS RECORDED IN BOOK 141 OF MAPS, PAGE 17 RECORDS OF MARICOPA COUNTY, ARIZONA. (WILLIAM BARNETT) EA00-36. AGENDA ITEM#4- CONSIDERATION OF A PRELIMINARY AND FINAL PLAT FOR THE 2-UNIT ARROYO VISTA CONDOMINIUMS NO. 2, LOCATED AT 16509 E. ARROYO VISTA DRIVE ON .257 ACRES. CASE NUMBER S2001-01. Councilwoman Hutcheson MOVED to approve the Consent Agenda as read. Councilman McNeill SECONDED the motion. A roll call vote was taken with the following results. Town Council Minutes Regular and Executive Session 3/01/01 Page 1 of 24 Councilman Kavanagh - aye Councilwoman Ralphe— aye Vice Mayor Wyman aye Councilman McNeill - aye Councilwoman Hutcheson- aye Mayor Morgan- aye Councilwoman Fraverd- aye The motion CARRIED unanimously with a roll call vote. AGENDA ITEM#5- CONSIDERATION OF REAPPOINTING THREE CITIZENS TO THE BOARD OF ADJUSTMENT FOR TWO YEAR TERMS. Mayor Morgan MOVED to reappoint Samuel Nicholson, Fred Luft and William C. Blankenship to the Board of Adjustment for a two-year term and Councilwoman Hutcheson SECONDED the motion, which CARRIED unanimously. AGENDA ITEM#6- UPDATE ON THE TOWN'S $2.1 MILLION INVESTMENT INCLUDING A PROGRESS REPORT ON THE TOWN'S EFFORTS TO RECOVER THE FUNDS. Mr. Nordin stated that the bond attorney Scott Ruby would be assisting him in updating the Council. Mr. Nordin referred to his manager's memo, which had addressed the direction given to staff by the Council at the last meeting. 1. Mr. Nordin noted that a paragraph in the demand letter which had been sent to the to BNY advised them to be cautious in the Town's investments. 2. Mr. Nordin stated that he and Mr. Ruby had worked on a follow-up letter to BNY, which furthered limited BNY's investment options to only securities backed by the credit of the U.S. Government. This letter had not yet been sent, as they had wanted Council's approval. Mr. Nordin said that the Town's accountant Julie Ghetti had investigated the possibility of investing the Town's idle MPC funds in only federally insured financial investments. Ms. Ghetti's memo was included in the Council's packet for review. 3. Mr. Nordin explained the"Businessman to Businessman"procedure, which began with the Town's demand letter that set a ten-day time deadline for action. He noted that BNY had also sent a demand letter but to Merrill Lynch, which again had the ten-day time limit. He said that time frame expired March 2, 2001. What staff proposed to do if the Town is not paid by next Monday, would be to have Mr. Ruby formulate an appropriate legal action and file it in the appropriate court as soon as possible. Mr. Nordin recommended that Mr. Ruby and his firm be given general direction in terms to take action against who they felt would be best sued. Mr. Nordin said he assumed that would be BNY with a potential for a suit against Merrill Lynch. Mr. Ruby said that under the indenture there was a list of eligible investments and the letter that he proposed to send would restrict those investments to only the first two categories and those were government securities. The letter he proposed sending would emphasize that the Town wanted prior written approval of all investments that they make, which must be made in government securities. He said that he and Mr. Nordin were anxiously awaiting the response from BNY on March 2. He said it had been indicated to BNY that the Town's ten-day deadline would be extended to cover BNY's ten-day deadline to Merrill Lynch so that all of the responses would be back before deliberating on the next course of action. Mr. Ruby said that if their answers were satisfactory, he would deal with the issue and report back to the Council. If the answer was not satisfactory, Mr. Ruby said they would proceed with legal remedies. He pointed out that the demand letter was the first step in pursuing those legal remedies because prior to filing any lawsuit the court wants the parties to have one last chance to make full payment. He said that he was confident in both claims against BNY and Merrill Lynch. Mr. Ruby stated that in BNY's demand letter to Merrill Lynch they admitted had they known the facts surrounding PG&E it would not have been prudent to buy that investment. He said that was a very helpful admission on BNY's part and he would leverage off that. Mr. Ruby said the preparation for the lawsuit would commence as soon as he had gotten a response from the parties. He assured the Council that his firm would pursue every claim they had against every person involved. He noted that he would omit PG&E from any action taken at this time because it appeared to be somewhat futile and was a much longer pursuit of that investment. Mr. Ruby said the opportunity to include PG&E was not lost. PG&E had the obligation to the Town to pay the money owed. He was watching the actions of PG&E and the state of California with respect to how they were handling PG&E creditors. Mr. Ruby wanted to be on alert for any type 3f favoritism that they might be expressing toward California creditors versus out of state creditors. He noted that Mr. Nordin was attempting to make contact with people in Tennessee who had also been placed in this predicament. Town Council Minutes Regular and Executive Session 3/01/01 Page 2 of 24 Mr. Nordin said staff was not recommending that the investment policy included in the Council's packet material be adopted or acted upon. He said that if the Council was willing to go along with the idle MPC program that had just been outlined, then Council direction along those lines would be welcomed. He stated that hearing no objections by the rouncil,he and Mr. Ruby would be sending the letter. Vice Mayor Wyman asked if restricting investments to CDs and those kinds of investments if there was a $100,000 limit for federal insurance. He asked if it would then be the plan to spread the Town's investments to different institutions so that the funds would then be guaranteed. He pointed out that the federal government did not guarantee such institutions as federal national mortgage. Although they had never been a problem it was implied that they were also insured. Vice Mayor Wyman felt that the Town's primary opportunity was to go after BNY. He asked if BNY would have recourse against Merrill Lynch. Mr. Ruby felt that BNY did. Vice Mayor Wyman asked if there was any advantage to the Town just going after BNY. Mr. Ruby said that question had been a matter of considerable debate. He said that Merrill Lynch had, in a confirmation ticket evidencing that investment said that they were acting as the agent of BNY. If that were true, then Merrill Lynch was the Town's trustee's agent, and the Town had enough contractual evidence via that route to bring them into the lawsuit. Mr. Ruby responded to Vice Mayor Wyman's prior comment with regard to the Town's future policy for the investment of funds. With respect to the instruction letter on the indentured funds for this particular deal, that the trustee now invest in only government securities, he had deliberately excluded paragraph three of the eligible investments. These included Ginnie Maes, Fannie Maes and those kinds of investments because he did not want to take that chance. They were not full faith and credit of the United States. He wanted to step back into the safer realm. He pointed out that in the case of the MPC funds, they would not have any certificates of deposit with an institution so the $100,000 did not come into play. The certificate of deposit was an obligation of the bank. He said that in this case they wanted particular investments registered in the Town's name either as a beneficial owner or as actual owner of US Government Securities. Councilwoman Ralphe asked if Mr. Nordin was looking for direction from the Council in response to the idle MPC funds as discussed. Mr. Nordin said that would be fine. Councilwoman Ralphe MOVED to direct staff to instruct any trustee, with respect to idle funds, that they must obtain ‘isgodrior written approval before an investment is made. These funds should be invested only in instruments backed by the federal government as discussed. Mr. Ruby noted that the monies might be invested at this time in investments that don't necessarily meet the criteria established tonight. The Town may have to wait until a particular investment matures before reinvesting the funds as discussed. Mayor Morgan SECONDED the motion. Vice Mayor Wyman asked where the MPC was in this chain of command. The wording reflected the management responsibility for the investment program was delegated to the Town of Fountain Hills investment committee (which doesn't exist)or the town manager. Mr. Ruby responded and said that the indenture provides that the investment decisions had been delegated to the Town's representative. The action tonight and Mr. Nordin's direction by any type of letter was consistent with that indenture. With regard to whom would approve a more general Town policy, that would be a separate issue from dealing with the MPC issue. He acknowledged that the MPC had not been cut out of the transaction. They would be a party to everything that is done. However, the documents were from when the Town first started the deal and established the Town as the investment representative for the MPC. Vice Mayor Wyman questioned if the Town was functioning as the MPC's agent. Mr. Ruby said the Town was acting as a representative of the MPC for that investment purpose. Vice Mayor Wyman said that then they could shoulder the fiduciary obligation on to the Town. Mr. Ruby agreed that was true. Councilman Kavanagh supported the motion. He noted that many looked negatively on these types of federally backed investments because it was thought there wasn't any investment yield on them. He felt the people compared them to savings bonds of the past. He said that Julie Ghetti's research held some surprising returns. He noted that there was a small difference of 1/3 of a percentage point in yield between the federally backed government securities versus the more risky investments that the Town had been following voluntarily. Councilman McNeill asked if staff needed direction on the pending litigation at this time. Mr. Ruby said staff would come ,back before Council if that became necessary. Mr. Farrell felt that would probably be considered at the second March Town Council Minutes Regular and Executive Session 3/01/01 Page 3 of 24 meeting or the first meeting in April to give staff adequate time to prepare. Mr. Ruby hoped that the parties would respond to the demand letter. ilo,,The motion CARRIED unanimously. Councilman Kavanagh commented that PG&E had to divest itself of its generating facilities, which left them with buildings and its transmission lines. He asked if PG&E currently had enough capital worth, if they went bankrupt, that there would be enough to sell to reimburse all bondholders and creditors. If not, could the Town recoup the money from BNY and Merrill Lynch through a lawsuit? Mr. Ruby replied that the most viable claims in the shortest period of time rest against BNY and Merrill Lynch. He felt that pursuit of PG&E, given all their problems, for the Town's $2.imillion was a gnat compared to the total of what they were dealing with. He said he did not know whether PG&E in a liquidation mode would have sufficient assets to pay the paper or not. Mr. Ruby said the Town would try to collect any difference from BNY and Merrill Lynch. AGENDA ITEM#7- UPDATE ON COX COMMUNICATIONS AND THEIR ACTIVITIES BY IVAN ,TOHNSON AND STEVE WRIGHT. Mr. Nordin introduced the two representatives from Cox Communication, Ivan Johnson, Executive Vice President, and Steve Wright. Mr. Nordin said they had wanted to give their presentation and respond to any questions by the Council and/or public questions at the Mayor's discretion. Mr. Johnson presented Cox Communications' viewpoint of why the rebuild was important to Fountain Hills and the status. He also covered why more people were calling Cox for service and how Cox was managing the increased activity. Councilman Kavanagh asked when the fiber optic came into Town would all areas in Fountain Hills then have service. Mr.Johnson explained the way their system was designed. It came from one source and from there it branched out like a tree. They would be bringing fiber from Scottsdale to the Fountain Hills location and then it would continue to be the branch and tree network that was in place today. This year the fiber update would be a replacement of the microwave link. Councilman Kavanagh questioned if there would still be areas in Town that were not serviced. Mr. Johnson replied ‘Illethat if there were sections of the Town that weren't serviced that would not change when the fiber came in. Councilman Kavanagh said that was a problem, as he wanted everyone to have service. He asked when everyone would have service. Mr. Johnson said he was not aware of areas that did not have service. Mr. Johnson explained that when the license was negotiated with the Town, Cox had put in a provision so that they did not unfairly burden existing customers. This was called the line extension policy. Basically there was a density criteria, so many homes per mile,before Cox was obligated to serve that area without charging a capital contribution to the people requesting the service. He stated that he now understood there were a couple of areas where that density test has not been met. He noted that did not mean that Cox had refused to provide service,but had said that if the customers in those areas wanted the service there would be a capital contribution involved. Those potential customers declined that offer. Councilman Kavanagh asked if there was credit available from areas that were overly dense to off set this cost. Mr. Johnson said that was not how the license was structured. Councilman Kavanagh pointed out there was a problem in the downtown commercial area in terms of getting service. He asked how that would be affected. Mr. Johnson said that would be positively addressed once the entire area was rebuilt. Once the rebuild was complete next year, then there would more services that could be provided regardless of the density, which was the reason Cox was not currently in the downtown area. He pointed out that the density of the number of people that want the service and the cost to get it there didn't make economic sense. When there were more services to provide, that starts to change the ability to service the commercial areas. He noted that historically cable has been in residential areas. Councilman Kavanagh said he was under the impression that this rebuild would be in July and he asked why Mr. Johnson was referring to next year. Mr. Johnson said information was given out based upon the best information that they had at the time. Cox had previously thought they would be able to do a rebuild in Fountain Hills this year. He explained that Cox Communications has had very challenging capital issues in the last couple of years and had to restructure their rebuild schedules. For that reason, Fountain Hills' proposed rebuild had been pushed back to next year from this year. Mr.Johnson said that much of that was driven by where Cox had licensed obligations to do those rebuilds. He stated that the licensed rebuild with Fountain Hills was to build out the current system to the current capacity. It was not to build it beyond that point. He said that what Cox was proposing to begin this year and finish next year was beyond anything that Town Council Minutes Regular and Executive Session 3/01/01 Page 4 of 24 was required in the current license. They were doing the rebuild to provide more services in this market as they felt it was good business. vlr. Nordin explained that when the license was negotiated between Cox and the Town approximately about 10 years ago, the Town had negotiated for the highest level of technology available at that time, which the Town had received. He stated in subsequent license negotiations held between Cox and such cities as Phoenix, there was now a greater level of technology available and Phoenix had renegotiated their license for that higher level of technology. Mr. Nordin stated that explained why for a time Fountain Hills had the best system that Cox could provide. Councilwoman Hutcheson said that considerably more development was anticipated in the downtown area. Since Cox had delayed the construction of this rebuild, she asked if Mr. Johnson could give a target date as to when they would be serving the downtown area. She said she had been questioned by existing businesses, but she was sure any development in that area would definitely want to know if service would be provided. Mr. Johnson replied that if there were specific projects they would be happy to look at them and try to get back to the Town with a timetable of service availability. He said Cox would have to look at the economics of providing service. He said service to condos was typically different than to a commercial establishment that wanted service. In terms of the other commercial services that would be offered by Cox, they would not be available until the rebuild was complete, which would be done next year. Councilwoman Hutcheson reiterated that Cox did not have any specific plans for the cable as far as television service to the existing downtown. Mr. Johnson restated that Cox would look at those projects on a case by case basis. He said it was not Cox's policy to say that they wouldn't serve, but that there was typically a capital contribution requested for an extension beyond what they were obligated to do under their license with the Town. Councilman McNeill asked how much fiber optics would be installed. Would it be brought over the hill from Scottsdale to a central station, which would then hook-up with Cox's existing cable? Or was Cox bringing fiber optic throughout town and replacing the coaxial cable? Mr. Johnson responded it was their intention to do both. Councilman McNeill then asked what kind of physical impact would that have on the residents. Mr. Johnson said that over the last number of years they had installed conduit in most of the areas where the cable has been installed. He said they would test the cable and in some cases there could be bad cable, which they estimated to be about 10%. But most of the cable in the neighborhood vould be fine and they would not have to replace it. What would be experienced would be outages when they brought in Niothe fiber optics into the neighborhood of 1,000 homes during the exchanging of the electronics. He said they try to do that work between 2 a.m. to 6 a.m. because there is a significant viewership between midnight and 2 a.m. He noted the activity in the neighborhoods as Cox placing the fiber and replacing on average 10% of the existing cable. Councilman Kavanagh asked if Cox would be making a thin cut into the street to place the cable or would they be bringing in a backhoe. Mr. Johnson said they did not use backhoes but they had diamond blade rock saws because of the hard terrain. He explained that the trench was typically 4" wide and if it lies behind the sidewalk it is about 18" — 24" deep at the most, which was covered and sealed as they replaced the cable or placed the fiber. Councilman Kavanagh asked if the fiber optic would run down to the individual homes and then inside. Mr.Johnson said it would not. He said the beauty of the network was that they did not have to replace that last half-mile of coaxial cable. He stated that cable had an incredible capacity for distance. He said that they could literally, with the 750 MHz cable network deliver, if everything were digitized, to over 1,000 TVs. He said they did not see that there would ever be a need for that so they would use some of that spectrum for analog, which is the signal that televisions understand. It would provide additional options to customers for service. Councilman Kavanagh expressed concern about the completion schedule. He did not think that Fountain Hills would be completely rebuilt until just before the Town's contract was up. He said that if the residents did not get the full line of services offered until just before Cox comes back to the Council for a contract renewal, he hoped that Cox would not stand before the Council and say look at all we did for you. He stated that if it takes that long for full service, he said he would not be happy and would feel that Fountain Hills had been treated as a second rate customer. Mr. Johnson said that was a point well made. He said the Councilman Kavanagh was not alone in his frustration with not having the services soon enough. He said he had heard this same concern expressed from other municipalities while working. He explained that they had a 12,000-mile plant in this market. The most that any system in his company had ever rebuilt in one year in one market was about 1,400 miles. He noted that Cox just couldn't do it all at once,as it was physically impossible. Town Council Minutes Regular and Executive Session 3/01/01 Page 5 of 24 Councilman Kavanagh said as the Town was delayed in being offered cable service, more and more residents were buying digital antennas. As more residents bought digital it would become harder for Cox to meet the density criteria and best serve Fountain Hills. By delaying this service, Councilman Kavanagh felt that Cox was hurting themselves%rniefurther slowing service within the Town. He noted it was a dilemma. Mr. Johnson said Councilman Kavanagh was correct and that was what was driving Cox much more than the Council's request as this was one of the highest penetrated satellite dish markets in the country. He said if Cox could provide service quicker, they would. Mr. Johnson explained that if they fail to get customers or lose customers to the satellite dish market the Town also lost revenue because the satellite dish market did not pay license fees to the Town,which Cox does. Mayor Morgan acknowledged that the density issue has been a problem. She asked whether or not the employees of Cox kept up with the building going on in Fountain Hills. She pointed out that when she had moved to Fountain Hills she was being told by the Cox representative, with regard to the density issue, service was not humanly possible because there weren't that many lots. When she finally had been able to get someone from Cox out to Fountain Hills and literally go with them she had gotten some results. Mr. Johnson said he was glad that she finally got cable. Mayor Morgan said she no longer had cable as she now used a satellite dish. Mr. Johnson acknowledged it was a very challenging issue. In a high growth market, which clearly Fountain Hills was part of, it was challenging to keep up with all of the growth. He said Cox was not perfect but they did try to keep up with the growth. He said that was why Cox worked closely with the Town staff and when situations were brought to their attention they try to address them as soon as they can. Joyce Szeliga, 12824 Ryan Way She stated that she had a business at 13207 N. LaMontana and she was the Vice President of Plat 208 Property Owners Association for the downtown area. She voiced her frustration with Cox for not making service available to her business. She explained she had tried to get Southwest Gas and Cox to work together in order to defray installation costs. She said that she had polled the businesses on Palisades and all expressed an interest in having cable service provided. She said the capital contribution, per Cox, to trench to her business from Palisades was $10,000. She felt that fee was ridiculous, as that would not be her direct line. She urged the Council to influence Cox to provide service from LaMontana and down Palisades in order to get the cable service to the Town Center area. She felt that then the businesses on LaMontana could get cable. ‘wMr. Johnson responded said that as Cox began their design there was a great opportunity for Fountain Hills to re-examine where Cox has their facilities anticipating the possibility of expanding service into some of the commercial areas. He said they would look at those options. Jerry Quinn, 16262 E. Rosetta Dr. He asked how channel selections were made for the various service areas. Mr. Johnson answered that Cox had to carry all of the local TV stations, which continued to increase in number. Cox looks at the programming available on satellite. He said that currently there were ten to twenty new programming services every year. He noted that some of the services fail so the challenge is to try not to change the channel line-up more than once a year and look at the number of services that they can bring in. He said the challenge in Fountain Hills was that there were only 62 channels and in the rebuild areas 82 channels exist plus the option of another 100+ channels in digital. He said that Fountain Hills would have more channels than a satellite dish once the digital service was available. Councilwoman Fraverd suggested that Cox provide a future layout design so those potential merchants wanting to locate in the downtown area would know what the chosen route for service would be. She felt that way a definitive plan would be helpful to the Town and advantageous to Cox. Mr. Johnson said that once Cox had their design, they would come back to Mr. Nordin and if so asked he will be back before the Council and share that design. He noted that typically there were phases and the work schedule could be explained at that time. He said Cox also makes a series of communication to their customers, as well as non-customers, to inform them when Cox will be in their neighborhood and when service will be made available. Mr. Johnson said they would make an effort to share that information with the newspapers for publication. Councilman Kavanagh was glad that Cox had agreed to reassess the needs of Fountain Hills. He noted that since Cox did ,,,.not really know where the Town's new subdivisions were going in or building permits were being drawn, Cox might overlook the areas where there was development coming in. He suggested that staff be directed to begin a series of Town Council Minutes Regular and Executive Session 3/01/01 Page 6 of 24 meetings with Cox in order to provide that housing data. Staff could then get back to the Council with quarterly progress updates. Mr. Johnson pointed out that some of that was already being done. He said that joint monthly utility meetings are held. In those joint trench meetings, new subdivisions are identified as well as where there are open trenches for Ntir conduit installation. He said they could look into trying to improve that process. Councilman Kavanagh asked that as plans are revised could Cox send copies to the Town so that the Council sees which areas are being added to and in which direction. Mr.Johnson said agreed that could be done. AGENDA ITEM#8- PUBLIC HEARING TO RECEIVE TESTIMONY ON AN APPLICATION TO PERMIT A 25 FT. GOLF BALL FENCE AS A SPECIAL USE IN THE"R1-10 RUPD" ZONING DISTRICT, PROPOSED FOR 16850 E.NICKLAUS DRIVE,AKA FINAL PLAT 401B,BLOCK 6,LOT 42,CASE NUMBER SU2000-04. Mayor Morgan recessed the regular session of the Town Council and opened the public hearing at 7:38 p.m. Mr. Burkhardt briefly reviewed the location of the house on the driving range and restated that the property owners had received many golf balls on their property. He reminded the Council that the property owner had previously constructed his own 25' high golf ball net but that the Town had required the net, as there wasn't any mechanism to permit that use. In response to this resident and one other resident, the Council had amended the zoning ordinance to allow a special use permit for a 25' golf ball net. Mr. Burkhardt said that this was a special use permit request by the property owner to allow a golf ball fence along the north and east portions of the property subject to the regulations of the Zoning Ordinance with stipulations. He said the applicant proposed a different location than what was being recommended by the Planning and Zoning Commission and staff. He displayed the site plan, which showed the two different fencing placements. Mr. Burkhardt stated that this issue had been before the Planning and Zoning Commission last week. The Planning and Zoning Commission had unanimously recommended approval with the stipulation that the golf ball fencing be placed close to the house, which was indicated on the site plan shown as the dotted line. He noted that line followed the old disturbance boundary. The Commission's intent had been to provide additional protection to the home, to allow for an adequate landscape screen between the lot line and the golf ball fence, and give the home owners the incentive to remove that net once the vegetation had matured. Mr. Burkhardt said that the golf course would be landscaping the driving range in that area. He said staff also recommended approval with stipulations. He noted that there was a significant health safety issue on this lot. Mr. Burkhardt commented that there had been some public opposition received. Councilwoman Fraverd asked what the approximate distance was from the golf ball fence to the house that Planning and Zoning Commission was recommending. Mr. Burkhardt responded it varied from 10'to 21'. Councilman McNeill referred to the ordinance's requirement for setback from abutting property that was equal to the height of the fence, which in this case was proposed to be 25'. He noted that there was also an intervening drainage easement so technically it did not qualify as an abutting property. Councilman McNeill asked for clarification. Mr. Burkhardt said that the golf course basically abutted the entire lot and they obviously would grant consent to construct within that setback and on the rear. Councilman McNeill asked if the lot immediately adjacent to the north was one that would require that the fence be no closer than 25' from that property line. He wanted to know if there was a way to move the fencing another four feet to get to what the law would otherwise require without the consent of the adjacent owner. Mr. Burkhardt said no, the recommended fencing line was right up against the driveway. Councilman Kavanagh asked if he was correct that the applicant's submitted version and the recommended fencing change made by Planning and Zoning Commission was the same where the fencing was near the adjacent land owner's property. Mr. Burkhardt said that was true for the most part and again referred to the site plan displayed indicating where the fence placement would be. Mr.Joe Shank, attorney for Denis and Karen Lueder He reiterated the history of this golf ball situation and displayed pictures indicating the minimal intrusion that this net would have on neighbors. He described the destruction that the Lueder's property had received from the numerous golf balls hitting their home and the safety issues that they face. He argued in favor of the Lueder's fencing placement as being less visible from the backyard of the property immediately adjacent to the north because of the substantial oleander growth that would block any view that property might have. He said that the Planning and Zoning Commission's recommended placement of the fencing would render the Lueder's yard useless and would make it more visible to adjacent property owners. He discounted that Mr. Lane would suffer any major obstruction of his views with the fencing %replacement proposed by the Lueders. He explained that Mr. Lane's house was located closer to the tee and could only see the Lueder's roof top because of the steep drop in elevation from the tee area to where the Lueders' home is. Mr. Shank Town Council Minutes Regular and Executive Session 3/01/01 Page 7 of 24 said the Lueders had tried to come up with a solution that would allow the driving range to conduct business, allow the Lueders to safely live in their home, provide the Lueders with the possibility of being able to sell the home someday close to fair market value, and to least obstruct or interfere with the rights of the neighboring homeowners. Mr. Shank Nibrrequested on behalf of the Lueders that the Council approve the special use permit application as originally submitted. He commented that he thought staff had originally supported this application as well. Charles Ayres,4227 N. 32nd St. Phoenix,attorney for Golf International He addressed Councilman McNeill's questions as to the ownership of the property north of the Lueders' home. He described that there was a drainage ditch, which was composed of a 10' easement off of the lot to the north, which was owned by Mrs. Lilly; a 10' easement off the lot to the south, which was owned by Mr. and Mrs. Lueder; and a strip in the center of 10', which was owned in fee by the golf course and was not a drainage easement. He stated that the golf course was in agreement with the Lueders and fully supported this request. Mr. Ayres pointed out that this was only one piece of a comprehensive agreement that had been reached with Mr. and Mrs. Lueders to try to cure this problem in its entirety. He confirmed some of the points to which the golf course had agreed: reorient the tee box further to the east, put in new target greens further to the east, and do additional landscaping (up to $30,000)around the net for which the Lueders were applying. They agreed with Mr. Shank that between the eucalyptus trees that run along the east side of the Lueders' property and the new landscaping that the golf course would be putting in,the fence would not block anyone's views. Councilman McNeill asked if the landscaping would be installed primarily along the west boundary of the driving range. Mr. Ayres replied that the landscaping would be along both the east side of the fence and the west side of the driving range and the north side of the fence. John Sujack, 16755 E. Nicholas He acknowledged that he too had the occasional balls in his yard but no where near what the Lueders suffer. He was in favor of the special use permit as listed on the Lueders' application on the lot line. Lori DeJong, 16804 Monterey Dr. She said that she and her husband support the Lueders' request for the fence. As they live directly across the street from :he Lueders it would be their views that would be most impacted, and they support the request as a health and safety issue. Larry Lane, 10431 N. Indian Wells(lot 45) He read a statement from Ed and Joanne Body, who were out of state, objecting to the proposed fencing and favored vegetation. Victoria Lilly, 16830 Nicholas She was opposed to the fencing and was in favor of landscaping as an alternative approach. Councilman McNeill acknowledged that Mrs. Lilly did not want a fence. Her statements have been made in favor and against locating the fence in the original location that the applicant would prefer as opposed to where the Planning and Zoning Commission was recommending. He asked Mrs. Lilly if one of those two choices were preferable over the other. Mrs. Lilly stated she did not want the fence along the property line and up the wash because it comes up to the corner of her house and she would have to look at it. Councilman McNeill then asked Mrs. Lilly if the fence were positioned to where the Planning and Zoning Commission recommended, would that be preferable. Mrs. Lilly answered that she understood how that would look to them but she still felt that landscaping was the answer and not a fence. Councilman Kavanagh asked Mrs. Lilly if she were more concerned about the fence being placed adjacent to her property as opposed to the fence on the other side. Mrs. Lilly said that was correct. She restated that she was opposed to that fence. Karen Lueder, 16850 E. Nicholas (applicant) She stated she was asking for the Council's help. She said that vegetation alone would not keep the balls out. The fence in the original design would be less of a nuisance to anyone. Mrs. Lueder asked the Council to review the pictures again, as the fence along the vegetation would be much better than having the fence along the house. Town Council Minutes Regular and Executive Session 3/01/01 Page 8 of 24 Larry Lane, 10431 N. Indian Wells Dr. (lot 45 three lots north of the Lueders) He pointed out that his east boundary was located along the west boundary of golf course tee line. He said this tee line covered approximately 3/4 of the depth of his property from north to south. He reminded the Council that last year they vdenied a special use permit for a wall and a 25' golf net along the range's west boundary that would have obstructed his views and accomplish nothing to improve the Lueders' situation. Mr. Lane felt that the recommendation by the Planning and Zoning Commission with their stipulations was a reasonable compromise to a bad situation even though he did not like golf fences. At the end of the Planning and Zoning Commission's hearing it had come up that the Lueders had insisted that as part of the negotiated settlement with the golf course that an oleander type hedge be installed along the westerly edge of the tee lines. This hedge would be placed along 3/a of his east boundary line. That meant in three or four years he would not have his views, for which he had paid a premium lot price. He did not feel the hedge would help the Lueders' situation. Since the oleanders were to be placed on the golf course property, neither he nor the Town had any legal right to anything. He wanted to know if the Council could place an additional stipulation on this application that the oleanders be maintained at no more than 3'. Mr. Lane clarified that the picture of his patio that the Lueders' attorney showed had been taken from the 5' most easterly portion. He noted that the attorney had not obtained permission but most importantly he had omitted the other 50' of his patio where he does have a south view. He disputed a statement made by Planning and Zoning Commissioner Downs that this was a special case because of the number of shots per day off the range which could be about as many as 5,000 shots per day. Mr. Lane said that based upon the data that the Lueders had submitted in their court case and to this Council for the years 1998 and 1999,the average shots were actually 30 balls per day for 1998 and 50 balls per day for 1999 and not 5,000 per day. He was concerned about the impact that the fencing would have on birds and wildlife as well as who would be responsible for the maintenance and cleanliness of the net. Patrick Perrini, 10440 Indian Wells Dr. He said he was the director of golf operations at Desert Canyon. He noted that it had been an on going legal battle with the Lueders to operate the driving range as it was originally approved with woods and irons and a practice bunker. For the last eighteen months, the driving range had been under the irons only restriction. It was his understanding that to get this restriction lifted the golf course had to come to some type of agreement with the Lueders and the Superior Court order needed to be dropped so that the golf course can resume business. He reiterated that if the Council supports this net application,the golf course planned to provide landscaping to cover the golf net. Vice Mayor Wyman said it was his understanding that the Town was either requesting or requiring that the golf course use "irons only". He asked if Mr. Perrini was suggesting that if the Council approved the screening of the Lueders' property would mean that the driving range could go back to the use of woods. Director Valder said that the Town Prosecutor was in the audience for the next agenda item, which was probably where that question would best be answered. Mr.Farrell encouraged both of the attorneys to give public testimony that their idea to grant the licenses would dissolve the current court order regarding the restrictions to"irons only". Mr. Shank said there were two types of nuisance actions that could be brought. He explained that the Lueders had filed a private nuisance suit, which can be done by an individual homeowner or resident who was being burdened by an adjoining property. He said that the injunction as it presently exists was one that was obtained by the Lueders to stop a private nuisance as it affected their property. If the Lueders were successful in getting the net installed as part of the global settlement, the preliminary injunction would be dissolved because the Lueders had obtained the injunction on their behalf only. He said that was all that was preventing the golf course from using woods on the tee. Any other restriction would have to be something that would be brought by the Town on behalf of the public at large. He said his clients did not have the authority to pursue that issue. They only had their individual rights and not those of the public at large. Mr. Ayres answered that the reason the golf course had agreed to build the fences was so that the "irons only" restriction would be removed. He said that restriction had cost his client roughly $100,000 annually while it has been in effect. He pointed out that the fence that the Town requested that the golf course put in at the south end of the golf course, which they have agreed to do if the Town grants the permit, was 230 yards off the tee. Mr. Ayres noted there were very few, including golf pros that could hit with an iron that far. At the longest point the driving range was well over 300 yards so they felt there wasn't a need for an"irons only"restriction. He reiterated that the whole point to their agreeing to do all of these things at great expense was to eliminate that restriction. Mayor Morgan reconvened the regular session at 8:18 p.m. Town Council Minutes Regular and Executive Session 3/01/01 Page 9 of 24 AGENDA ITEM#9- CONSIDERATION OF A SPECIAL USE PERMIT APPLICATION FOR A 25 FT. GOLF BALL FENCE IN THE "R1-10 RUPD" ZONING DISTRICT AT 16850 E. NICKLAUS DRIVE, AKA FINAL PLAT 401B,BLOCK 6,LOT 42, CASE NUMBER SU2000-04. ilirCouncilman Kavanagh MOVED to approve the special use permit as submitted by the Lueders and Vice Mayor Wyman SECONDED the motion. Councilman Kavanagh said that when this issue came up last year he had gone out to the Lueders' property. He was shocked at the amount of destruction done by golf balls to their home. The Lueders had patched all of the holes in their exterior walls but they were still visible because of the new paint. He said he really felt for them. He was aware that the driving range had been shut down when the Lueders purchased the home so they had not known about its existence when they bought the house. Councilman Kavanagh said he was pleased to say that it had not been the Town of Fountain Hills who had approved that lot because it occurred before incorporation. He noted that the lot approval was really the root of the problem. He said that regardless of who was responsible and whether or not the Lueders should have realized what was going on, the fact remained that there were residents who were in a terrible situation and needed help. He said their house,as is, was rendered virtually worthless and useless and they had to always live in fear of being hit by a golf ball. He said he found that to be intolerable and felt that the Council should use their authority to give these residents some relief. Councilman Kavanagh stated he had become more conscious of these types of golf net fences. He referred to those golf fences along Hayden and other golf ranges. He pointed out that if the right texture fence were used, the fence would be hardly noticeable as they were made to blend into the air. Councilman Kavanagh acknowledged that this particular lot location was in the corner of the driving range,obscured partially by a hill,and not highly visible. He did not agree that an oleander hedge alone would become big or dense enough to stop anything from going through them and providng the Lueders relief. Councilman Kavanagh did not feel the Planning and Zoning Commission's recommendation would be good for the Lueders because it would move the fence right in the middle of their yard. He pointed out that either of the fencing options would still place the fence close to Mrs. Lilly's property. Councilman Kavanagh sympathized with Mrs. Lilly but he felt neither plan would satisfy her. He felt that the Lueders' plight was so great that the Council should assist them. Councilman Kavanagh noted that recently the Planning and Zoning Commission unanimously approved a fence on the Shaffer residence and he felt that fence was more visible than the proposed fence on the Lueders' property. He did not understand why a fence placed out in the open was approved and the Lueder fence, which would be in the corner and covered by vegetation, was a problem. Vice Mayor Wyman asked if Councilman Kavanagh's motion included the stipulations. Councilman Kavanagh replied no, that was why he made the motion "as submitted by the Lueders". Vice Mayor Wyman said he had looked at the situation and agreed vegetation and landscaping would not be enough to stop balls from entering the Lueders' property. Vice Mayor Wyman posed the same question that former Councilwoman Wiggishoff had asked. If the Lueders don't have the right to have a screen around their home to protect themselves,then why does the ordinance exist? Councilman McNeill AMENDED the motion to add a fourth stipulation"That the fence and net remain in good repair and significant quantities of debris shall promptly be removed from the fence" and Councilman Kavanagh SECONDED the amendment. Director Valder asked for clarification of the original motion. Was it to approve the special use permit at the fence location as proposed by the Lueders? Did the motion also include a change to stipulations#1, stipulations#2 and#3 with the addition of this fourth stipulation? Councilman Kavanagh said yes and Councilman McNeill said he had understood the motion to be that way as well. Director Valder said staff was in agreement with the fourth stipulation. Councilwoman Hutcheson said she realized the seriousness of the Lueders' problem. Unfortunately, the house should never have been built there. She felt that the Planning and Zoning Commission had done an enormous amount of work on this in trying to reach a compromise with both the Lueders' safety and neighbors' positions in mind. She felt that their ,recommendation that the location of the fence be closer to the house offered the most protection to the Lueders and the least objection to the neighbors. For that reason she would not support this motion. Town Council Minutes Regular and Executive Session 3/01/01 Page 10 of 24 Councilwoman Fraverd said she would not support this motion. She acknowledged that the Lueders did get more than their fair share of golf balls but she wondered what they were thinking when they looked out over the green before they purchased the house. She questioned why didn't they check into it further, were they not golfers? She was opposed to golf ball fences in general. She explained that the idea was that this use had been created specifically for those very few properties where the golf ball fence would be absolutely invisible to any of the neighbors and to any one passing by. She questioned if the Council envisioned back to back golf fencing along the golf courses for Fountain Hills. She said that was not her vision. Councilwoman Fraverd reminded the Council that a year ago a suggestion had been made to the Lueders, which was to move the fence in right next to their house, in order to protect the house and allow use of their patio. She did not want to go into the disturbance boundary with the net. She said she might consider putting the fence along the disturbance line as a compromise but she would not consider the fence along the driveway. Councilwoman Ralphe said she had also visited the location. She acknowledged some protection was needed and the best decision and compromise was a net close in to the house as recommended by the Planning and Zoning Commission. She felt that then the Lueders would have the opportunity to put in a lot of mature trees outside the fence. Then someday they might want to take down that fence. Councilman McNeill was convinced that something needed to be done to help the Lueders. He said the Planning and Zoning Commission had spent a lot of time on this issue and he would go along with the Planning and Zoning Commission's recommendation. The amendment CARRIED unanimously. A roll call vote was taken on the amended motion with the following results: Councilwoman Ralphe— nay Vice Mayor Wyman aye Councilman McNeill- nay Mayor Morgan- nay Councilwoman Fraverd- nay Councilman Kavanagh- aye Councilwoman Hutcheson - nay The motion FAILED on a vote of 5—2. Councilman McNeill MOVED to approve the special use permit as recommended by the Planning and Zoning Commission with the addition of a fourth stipulation requiring that the fence and net remain in good repair and significant quantities of debris be promptly removed from the fence and Councilwoman Hutcheson SECONDED the motion. Charles Ayres asked for clarification on stipulation #2 on the staff report. Director Valder responded that stipulation #2 required the placement of large eucalyptus trees to screen the net. He explained that there was a section in the regulations of the code that required landscaping to screen holes of the net. Councilwoman Fraverd AMENDED the motion to stop the fence where it bisects the old line (where the pavement at the driveway was at a corner) and Councilwoman Ralphe SECONDED the amendment. Director Valder pointed to the proposed end of the fence on the site map the location as described by Councilwoman Fraverd in her amendment. Councilman Kavanagh wanted to ask how the Lueders felt about this action as it might impact their negotiations with the golf course. He wanted to give the Lueders the option to continue this to a future meeting so that the Lueders could discuss it with the golf course and their attorney as it would not impact anyone else. Mr. Shank responded that the Lueders had no interest in the net if it were to be cut off at the driveway since that was about 75% of the angle that was the most hazardous. Mr. Shank stated that if the current proposal were approved, it would basically put a net down the middle of their backyard and was the most obtrusive for the Lueders offering the least amount of protection and benefit. He felt it made a bad situation worse and the Lueders would not support that. It would not be built that way and they would be back in court with the golf course. Town Council Minutes Regular and Executive Session 3/01/01 Page 11 of 24 Vice Mayor Wyman added that any autos parked in the driveway would still be at risk with this proposal. Councilwoman Fraverd did not see that the lack of the fence in that little portion had a significant bearing on this issue. She thought it was (itiwthe back of the house where the concern was. The amendment FAILED on a vote of 5—2. Councilwoman Fraverd and Councilwoman Ralphe cast the aye votes. Councilman Kavanagh again asked how the Lueders felt about the Planning and Zoning Commission's recommendation. Mr. Shank said the Lueders were upset. He asked if there was some confusion as to where the disturbance line was. He said it was his understanding that the latest engineering report showed that service line was much further out. Mr. Burkhardt responded that the dotted boundary represented the location of the fencing. The engineer had revised the disturbance boundary in an effort to show them what kind of area that they had so as to locate that fence as close to the property line as possible. The disturbance boundary now runs about 5' along the rear property line leaving a sliver of undisturbed area. Director Valder felt what the Council was questioning was the exact location of the fence. He assured the Council that the site map displayed would be the map used. It indicated the portion that was just subject to a failed motion to amend plus the alignment on the old disturbance line that showed in dots. Councilman Kavanagh asked the Lueders if they could live with this proposal. Mrs. Lueders said they would not have a backyard and this proposal would make the property lose value. They would not be able to ever sell the property. Mr. Ayres said it was important for the Council to note that part of the arrangement between the golf course and the Lueders required the golf course to move some mature pine trees. He said these trees already existed on the driving range from the east side of the driving range and would be moved to the west side along the Lueders' property line. The golf course would also plant other 36"and 42"boxed trees along the west property line of the golf course and the east property line of the Lueders so moving the fence in towards the Lueders house would not encourage any landscaping. He said the landscaping would be going in anyway and all the fence would accomplish would be to cut their yard in half. Councilwoman Hutcheson reiterated that the fence close to the house would offer the Lueders greater protection. Mr. Shank said his clients had considered the danger aspects of this and the property damage. He stated that if the 25' fence rwere placed at the property line or the current disturbance line it would not stop the types of balls that were dangerous to property and to people,because line drives were the shots that you should be worried about. Vice Mayor Wyman reiterated that the motion to place the fence where the Lueders wanted it had already failed. He said he would support putting the fence where the Planning and Zoning Commission recommended, knowing full well that if the Lueders didn't want it there they wouldn't put it up. He noted that would be their judgment call. The motion CARRIED on a vote of 6— 1 with Councilman Kavanagh casting the nay vote. Mayor Morgan called for a ten minute break and asked that the Council return at 9:00 p.m. AGENDA ITEM#10-PUBLIC HEARING TO RECEIVE TESTIMONY ON AN APPLICATION TO PERMIT A 25 FT. GOLF BALL FENCE AS A SPECIAL USE IN THE"R1-10 RUPD" ZONING DISTRICT,PROPOSED FOR PARCEL "D", FINAL PLAT 401B, AKA A PORTION OF THE SOUTHERN BOUNDARY OF THE DESERT CANYON GOLF COURSE DRIVING RANGE, ALONG NICKLAUS DRIVE, CASE NUMBER SU2000-05. Mayor Morgan recessed the regular session of the Town Council and opened the public hearing at 9:02 p.m. Mr. Burkhardt said that this was a request from Desert Canyon Golf Course to locate a 25' golf ball net along the southern property boundary of Parcel D, which would be just southeast of the Lueders' property. It was his understanding that there was a Town suit against the property owner to come forward with this application to protect Nicholas Drive from arid golf shots that had been making it into Nicholas Drive from the tee boxes. For that reason the prosecutor felt it necessary to bring litigation against the golf course. He asked that the Town Prosecutor present the details of that litigation. Town Council Minutes Regular and Executive Session 3/01/01 Page 12 of 24 Mark Iacovino, the Town Prosecutor, reviewed what they were looking for in this application. This was a similar problem yet a very different problem. He spoke of Mr. Shank's earlier reference to a public nuisance action versus a private nuisance action. Mr. Iacovino said that although both the Lueders' private action as well as the action brought by ‘tionis office on behalf of the Town arose from essentially the same problem, which was golf balls leaving the driving range. He gave a history on what led to the public nuisance charge, how that matter was resolved and that resolution in turn brought this application in the Council. He said the implications and possibilities in the future depended upon what action the Council took tonight. He stated it was not his intention to advocate that the Council neither grant nor deny this permit. He believed that from a public safety standpoint the proposal makes good sense. He said the problem arose at about the same time. About three years ago the golf course changed ownership and in 1999 the driving range was shut down for a period of time. He said at that time alterations were made to the driving range and the tee boxes were moved slightly forward creating a lesser distance to the street to the south. He noted that during that same period of time golf technology had improved, with clubs hit further and balls flying further. The result was the combination of these things. When that driving range reopened his office started getting calls from people on the south side of Nicholas Drive. They stated they were suffering a similar problem to that of the Lueders. Mr. Iacovino recognized that balls landing on their private property, unless it affected a large number of residents, was really not a public concern but were individual private concerns of the property owners. Mr. Iacovino explained that his office became involved when it was realized that a significant number of golf balls were getting into those yards in the south end of the range. He pointed out the balls could only get there one way, which was across a public roadway (Nicholas Dr.). He said the balls were either bouncing across the street or were still on the fly crossing the street into the front yards of those homes. On occasion they were going over these homes and into the back yards of the homes on the south side of the driving range. It was his understanding, that from the time the range reopened to the time that the Superior Court stepped in with their stipulations with regard to the use of irons only,this driving range was being operated as an unrestricted range. There weren't any restrictions in place in terms of what types of clubs and balls could be used. He felt Mr. Ayres would express that the golf course has serious reservations about restricting that range. That would have to be factored into the mix in terms of what was the proper solution. As the Town's prosecutor, knowing that the balls were flying across the public roadway and understanding that there was potential for a dangerous situation, he pointed out it was his job to protect the public's safety. His office viewed it as a situation that needed to be addressed in some way. Mr. Iacovino brought action under State Statute as well as Town Code for maintaining a public nuisance, a condition that would endanger the public's safety and welfare. Once the charges were brought, there was extensive discussion about how to resolve this matter. If it should come to trial in the municipal court and if there were a finding of guilt that the golf course had created and maintained a public nuisance. The remedy would then be in the hands of Judge Shoob. Questions arose as to what kind of remedies could be imposed. Judge Shoob could impose fines,jail time, and probation. He noted that in this case the fines could run up to as much as $10,000 per day that a violation existed. During the discussions, as the Town's representative, he had engaged the help of an expert, Bryan Curly, a golf course architect. Mr. Iacovino stated that Mr. Curly had designed golf courses throughout the United States and the world. He said that he presented the problem to Mr. Curly, what the Town was faced with and Mr. Curly was quick to explain what the crux of the problem was. Mr. Iacovino projected the rendering prepared by Mr. Curly, which helped him to understand. It depicted the driving range itself with the tee boxes to the north and Nicholas Drive to the south. He pointed to the homes across the street. Mr. Curly gave him an overlay, which outlined the way a driving range would be designed today given the advances made in today's golf technology and the distances that would be expected. Mr. Curly's overlay indicated that today's driving range would have an end boundary that was in the backyards of those homes on the south side of Nicholas Drive. He said that the golf course and he had discussed several possible solutions. One was the nets being talked about today. There had been talk of reorienting the range to the southeast,picking up some considerable distance but then placing other homes on the north side of Nicholas Drive right in the bullseye. He said those changes would involve considerable expense to the golf course which they did not want and would create a problem for other homeowners. It probably would solve the problem with Nicholas Drive. Mr. Iacovino said he returned to Mr. Curly with the ideas proposed by the golf course, which were in the application before the Council today. Mr. Curly's opinion was that a 25' net from the southwest corner of the range extending 200' to the east by itself with no restriction on the range would probably stop 75% — 80% of balls crossing Nicholas Drive. If that same net were coupled with an Now"irons only"policy that would likely solve the problem. Town Council Minutes Regular and Executive Session 3/01/01 Page 13 of 24 Mr. Iacovino said the golf club representatives were unwilling to agree to a strict "irons only"policy arguing that most of their golfers couldn't hit the ball to the street with a wood so why should they restrict them. They were interested in a distance restriction as opposed to a club restriction. He reviewed the resolution to the criminal litigation as agreed upon Slow between the parties. The Town would dismiss the criminal charges, if the golf course brought before the Council an application for the net on the north side as proposed, coupled with signage on their front tees that said "irons only" and with enforcement of that policy on the front tees as necessary. The Town would have the ability to again file the charges in the future if the problem continued. He said he had been satisfied with this resolution. From his standpoint as a prosecutor,if the Council were to grant the application with the stipulations, and the problem continued in spite of the net and the signage,he would then have the ability and right to file new charges and take this back to the municipal court. On the other hand if the Council were to deny the application the golf course would have satisfied their end of the bargain by presenting it. If the problem continued in the future, as the prosecutor he would still have the right to come back with additional criminal charges. So those mechanisms, depending upon the Council's action coupled with how it works in reality, would determine if there had to be any further action. He felt this was a reasonable solution to the problem. He said the question was of public safety. Mr. Iacovino said that the Council might hear that for the last year or so there had not been a problem. He reminded the Council that the Lueders', through their Superior Court action, had managed to get an injunction placed upon that golf course,which had been restricting golfers to irons. That action had greatly reduced the number of balls reaching Nicholas Drive. He said the Town was looking for a permanent solution. Once the Lueders' civil litigation runs its course, any restrictions on the use of the range would be dropped by the Superior Court. The Town would again be faced with an unrestricted range situation with a large number of fast moving golf balls crossing that public street. Councilwoman Fraverd acknowledged she was not a golfer and asked if this problem was at the driving range. Mr. Iacovino stated it was the recommendation of the Planning and Zoning Commission to deny this application. They had expressed concern that nets along public roads might open a precedent. He felt that concern was unfounded because he was unaware of any similar problem on any other public street. The problem that the Town was having seemed specific to this driving range. Councilwoman Fraverd inquired what the distance was from the tee to the street. Mr. Iacovino did not know the exact distance but estimated from the current tee boxes to the furthest corner as being as much as 300'. He pointed out that the problem area lay to the southwest where the distance was considerably less. Councilwoman Fraverd Ilir'asked what the average golfer's stroke would be. She questioned if someone were to use an iron from the tee they would not be able to hit the street but if using a wood they would. Mr. Iacovino quoted his expert, Mr. Curly, that the average golfer could probably not reach the street with an iron, the average golfer with the wood might be able to reach the street, but a good golfer could punch the ball across the street all day. He did mention that was subject to wind condition and other variables. Mayor Morgan pointed out that there were more good golfers now than in the past because of improvements in the golfing technology. She personally knew several good golfers who could punch that ball if they were using woods. She questioned if that would happen if they used an iron. Mr. Iacovino said that was his position as well. He was looking for a way to balance the public safety concerns with the golf course's desire to run a driving range. Mayor Morgan asked what assurances the Town had that woods would not be used on a daily basis. Mr. Iacovino said that as the Town Prosecutor he would take further action if they did not comply. Vice Mayor Wyman noticed that staff recommended that the golf course strictly enforce an iron only policy and he noted that was not a stipulation. Director Valder said he was unsure as to extent the Town could make a stipulation and would it be enforceable. Vice Mayor Wyman said if it had been a stipulation it would have been redundant because it was not that big a problem provided that an irons only policy was used. If that can't be properly enforced, then the Town would have to be concerned about the use of woods. Mr. Iacovino said the golf course's position was firm that they were not willing to strictly enforce an irons only policy. He reiterated Mr. Curly's recommendation that the net coupled with an irons only policy would satisfactorily solve the problem. Vice Mayor Wyman said that the Town was then faced with having a net in order to deal with the reality that there would be balls driven. Mayor Morgan asked if someone were to be hit by a ball, who would bear the liability. Mr. Iacovino responded he did not know how the court would answer that. He suspected that if the Town was aware of the problem and had failed to take corrective measures, they might set their sights on the municipality. Mayor Morgan reminded everyone about an incident in Scottsdale along Hayden where someone was riding a bicycle with his or her child and the child was hit by a golf ball. Mr. Iacovino remembered that the City of L.,Scottsdale paid out a sum of money but he did not remember the specifics. Town Council Minutes Regular and Executive Session 3/01/01 Page 14 of 24 Councilman McNeill said the stipulations that had been reached with the golf course required that the front tees be marked"irons only" and enforced as necessary. He recognized that with the wording "enforced as necessary" that woods would be used occasionally. He asked what the consequences would be if there were a breach of the stipulation. Would ,•the prosecutor resume the pending court action? Mr. Iacovino explained that there were two tiers of tees. It was agreed that the front tee would be restricted and on the rear would not. Councilman McNeill asked what the effective height of the fence was. The effect of combining that steeply sloping area with the Town's 20' setback would give the Town an effective height there at considerably less than 25' reducing the effectiveness of the fence to some extent. Did the expert take that into account? Mr. Iacovino confirmed that he had taken that into account. Mr. Burkhardt said there would be about a 5' dropping grade. Councilman Kavanagh asked Mr. Iacovino to repeat what the expert said about the use of woods on the rear tees with the net. Mr. Iacovino reiterated that Mr. Curly was of the opinion that the use of woods from the rear tees, with the netting, would solve the problem. Mr. Curly had cautioned that there were always going to be people that could put that ball over the net. Charles Ayres said, contrary to the characterization that the Council heard, the golf course was not brought in tonight kicking and screaming. In fact, this action was their idea years ago. He said this driving range has been in place since 1971. He reminded the Council that the golf course had been the drawing card for the homes in the area. The golf course operation realized about three years ago with the increased technology the range was getting shorter even though it was staying in place. He said they approached the neighbors on the south side of Nicholas Drive and explained they would like to put up a barrier net to make sure that balls did not get across Nicholas Drive. Their response had been"Don't you dare do that". He said that at that point they yielded to the neighbors' request. Instead of putting up a fence, or asking the Town for one since the ordinance wasn't yet in place, they had planted a hedge of oleanders along the south side of the driving range and the north side of Nicholas Drive. They felt that the hedge, once grown, would probably work. But the hedge then becomes a problem because the neighbors don't want the hedge to grow. The golf course was stuck in the middle. They were willing to do something to protect Nicholas Drive but the neighbors don't want them to do that. When the renovations were done to the driving range, there weren't any changes made to the tee boxes. What had happened was they had dropped the level of the tee box, which makes the golf balls fly less distance. The golf course had coialways had an irons only policy from the front tees of this driving range and not at the demand of the Town but because it as a practical and sensible thing to do. The driving range to the east side was such a length that Tiger Woods could not hit a ball off the driving range. Mr. Ayres said that Mr. Woods was the only golfer in history to ever average 300 yards and he would not be able to get out. He acknowledged that on the west side someone could hit the ball out. He pointed out that Mr. Curly had met with them on the driving range. Mr. Curly had brought with him a scratch golfer who stood on the front tee with a Big Bertha driver and hit balls repeatedly. He could not come within 40-yards of hitting Nicholas Drive. The notion that someone could sit in the tee box of that driving range and hit a ball over the houses on the south side of Nicholas was a pipe dream. He explained that those balls were in their backyards because the fifth fairway ran behind their houses and people hit balls off the fairway into their backyards. When the action was brought against the golf club they had never seen a single statistic indicating how many balls had ever gone across Nicholas Drive. They had never been informed of the identity of anyone complaining about balls crossing Nicholas Drive. They did not know of any incident where anyone had been hit or had property damage reported. Mr. Ayres said the golf course was perfectly happy to build this fence. They had agreed to build this fence because the Town Prosecutor asked them to build the fence. He pointed out that they were not willing to restrict their business operation to a point that made it nonsensical to have the driving range. The reason that they were willing to build this fence was so they did not have to worry about restrictions on what was hit off the tee box. He said Mr. Perrini would address this issue from the standpoint of a professional golfer. He said Mr. Perrini would tell the Council that it was not true that anyone would be able to hit a wood off of the tee box over a 20' net at the south end of this course. Patrick Perrini, 10440 Indian Wells Dr. He stated that Mr. Curly had brought a scratch golfer with him when they met on the driving range. He noted that Mr. Curly's golfer was a big guy who brought with him a big gun and he shot not from the forward tees but from the middle of that range. He noted that more than a dozen balls were hit and he was unable to come close. Mr. Perrini said he had hit one ball. He stated that he had been a PGA professional for about 10 years and had been playing golf for 30 years,and he can't hit a ball off the back of that range either. He agreed there were probably people that can but if the net were to be put in place, he assured the Council that no one would hit a ball off that corner of the range. It could not be done Nirsv Town Council Minutes Regular and Executive Session 3/01/01 Page 15 of 24 Ed Cizak, 16911 E. Nicholas He said that a ball could not be hit over those oleanders. He stated that this had never been an issue until the Lueders and the fellow who moved in next door to him. Once his neighbor moved,the Lueders were left all by themselves in this. He did not have a problem with the golf course and his new neighbor did not have a problem either. He was opposed to the fencing. John Riley,next door neighbor to Mr. Cizak He had no problem with the golf course and was opposed to the fence. Vice Mayor Wyman asked Mr. Riley to indicate on the map displayed where his house was. Mr. Riley pointed to the house and Vice Mayor Wyman confirmed that he was in the target area. Mayor Morgan reconvened the regular session at 9:38 p.m. AGENDA ITEM#11 - CONSIDERATION OF AN APPLICATION TO PERMIT A 25 FT. GOLF BALL FENCE AS A SPECIAL USE IN THE "R1-10 RUPD" ZONING DISTRICT, PROPOSED FOR PARCEL "D", FINAL PLAT 401B, AKA A PORTION OF THE SOUTHERN BOUNDARY OF THE DESERT CANYON GOLF COURSE DRIVING RANGE,ALONG NICKLAUS DRIVE,CASE NUMBER SU2000-05. Councilwoman Fraverd MOVED to deny the application and Councilwoman Hutcheson SECONDED the motion. Vice Mayor Wyman said what the Council was hearing from the neighbors in this area was that this was a possible solution in search of a problem. Mr. Iacovino said the comments from these neighbors were from the recent past. He reminded the Council that the circumstances have been very different since the Superior Court placed certain restrictions on the range. He assured the Council that the charges that had been brought against the golf course in the summer of 1999 were based upon substantial and credible evidence that large numbers of golf balls were crossing Nicholas Drive. It was only after the Superior Court Ihiehad stepped in that the problem has been solved for the last 18 months. He said his concerns had more to do with the future, which would be different today. Vice Mayor Wyman commented that he had walked that area everyday and he said he would quarrel with the golf course attorney that until recently he did not see any signs on the course restricting golfers to irons. He said there were literally weeks that he had gone by there and found no signs whatsoever. He said he had deliberately done that because he had wanted to see if the management of the course cared enough to even try that approach. He said the situation could have been that they were driving off the forward tees using woods because he believed that from the rear tees no one could reach that street. He thought that might be the explanation. Vice Mayor Wyman noted that Director Valder had spent hours at that course observing the golfers at his request a year or so ago. Director Valder said the golfers came close. If you were to take the middle of that range on the eastern side, even from curb to curb, the distance was 800' feet long or 267 yards at its longest length. If taken to the mid range, it was probably 250—260 yards, but if hitting from a forward tee it was even less. Director Valder concurred with Mr. Iacovino's consultant that it would be possible for an above average golfer to hit that street. He said he had sat out there for about 8-hours on two different weekend mornings and concluded that it all hinged on who was hitting. He did not think you had to be Tiger Woods to hit that street. If a golfer could hit 260 yards on the fly, which was a long shot, he felt there were a lot of people who could make that type of shot and the street was within range. Vice Mayor Wyman admitted frustration with the conflicting statistics that the Council had received. He said either a golfer could hit the street or they couldn't and he wanted to know which way it was. He was now thinking that there was a problem. Councilman Kavanagh said he was not hesitant to permit a fence when it was really needed. The reason he didn't make a motion on this fence was that he was not convinced that this fence was needed. He pointed to the residents who live there and did not see a problem and to staff who alluded to the problem yet did not have hard statistics. He suspected that Mr. Iacovino might be right that the present lull was because of the threat of criminal prosecution, the Lueder lawsuit, and the Town Council Minutes Regular and Executive Session 3/01/01 Page 16 of 24 overall heat that was on the driving range. He suggested that perhaps the golf course would be more adamant in enforcing the "irons only" rule. He surmised that perhaps in the future when the spotlight was not on the driving range they might lot be as diligent and then there might be more golfers on those front tees and then the Town would have a problem. He Illwdid not want to put a net in when there wasn't a clear need for it. He felt that at all golf courses around town there was the occasional ball that would go off course and nets couldn't be put up when that occurs only occasionally, even if someone got killed,because it just did not justify the frequency. In this instance, he felt it was a close call but not enough to tilt him to vote in favor of a net. He would like to see staff monitor this situation. If this did come back before Council, he would be the first one to urge more action by the prosecutor and perhaps the Town. He was frustrated because of the lack of hard data but he was concerned that the woods would be used more frequently. Vice Mayor Wyman said he was very sensitive to this issue and that now there was clearly "irons only" signs posted. He felt Councilman Kavanagh had a point in his suggestion that the course itself was being more sensitive to the situation because of the prosecution concerns. Councilman McNeill hoped that even if a fence were not put up in this area that the golf course would have the good sense to go out and counsel those "Tiger Woods"type individuals who could put shot after shot over the oleanders and into the street. He suspected that the problem might again be a problem in the future as it has been a problem in the past. He acknowledged that the Council might be revisiting this issue. If that proves to be the case, Mr. Ayres stated that the solution of the net was something that the golf course previously had wanted to do. He hoped that if it is seen in the future that woods were being used and there was a danger on Nicholas Drive to the traveling public, the Council might revisit that issue and that the golf course's desire to put the net up would still be there. Councilwoman Hutcheson agreed with Councilman Kavanagh and Councilman McNeill. She understood that there probably is a decrease in the frequency in the number of balls going into the street now because of the pressure being put on the golf course. The Council was hearing that much of this problem could be solved by enforcement. She proposed that it would be a good idea for the golf course to strictly regulate their irons only policy on the front tees and staff can then monitor the situation. She also agreed that anytime that the public is on a street by a golf course there was a chance of getting hit by a golf ball. She concurred with the Planning and Zoning Commission. She did know when to say that the chances were so great that a fence was necessary. Councilwoman Hutcheson said in Fountain Hills there could be fences verywhere. The motion CARRIED on a vote of 6— 1 with Vice Mayor Wyman casting the nay vote. AGENDA ITEM#12-PUBLIC HEARING TO RECEIVE TESTIMONY ON AN APPLICATION TO PERMIT A 25 FT. GOLF BALL FENCE AS A SPECIAL USE IN THE "R1-10 RUPD" ZONING DISTRICT, PROPOSED FOR 10822 N. INDIAN WELLS DRIVE, AKA FINAL PLAT 401A,BLOCK 8, LOT 3, CASE NUMBER SU2001- 01. Mayor Morgan recessed the regular session of the Town Council and opened the public hearing at 9:52 p.m. Mr. Burkhardt stated that this was the last application for a golf ball net off hole number 16. He displayed the lot that was requesting this application. He described the placement of the garage and the patio. He pointed to the existing large cypress type screen trees that a property owner had placed in order to try to screen those golf balls from the property. Mr. Burkhardt described the golf shots made in the direction of the property as hook shots, which were not as common as a slice shots. The proposed golf ball net would be placed right in front of those trees. He passed around pictures in order that the Council could get a better idea of the location. He noted that staff had not received any public opposition to this application. The Planning and Zoning Commission meeting there had been two neighbors who showed support for this request. He said the net would be located towards the tee box. Staff was requiring that additional landscaping be provided too fully screen the net. He said that staff and the Planning and Zoning Commission recommended approval of this application as it was a health and safety issue. Councilwoman Ralphe said she had visited the site today and the garage door did not look like this. She had not seen all of these dings. Director Valder responded that a new garage door had been installed. Councilman Kavanagh said he was trying to give equal application of the law to each request and he was comparing this application to the Lueders' application. If this applicant was getting 100 balls over the past year, that seemed more like a Town Council Minutes Regular and Executive Session 3/01/01 Page 17 of 24 monthly total for the Lueders. He noted that the placement of both fences was proposed to be close to the vegetation and he did not see much difference in visibility. He stated that he was trying to get an idea of what went on at the Planning and Zoning Commission meeting. The meeting minutes did not tell him too much other than the fact that there weren't ilipeany neighbors who complained versus the Lueders' application. Councilman Kavanagh asked for a comparison of what the factors were that justified this fence application. Mr. Burkhardt acknowledged that neighbor opposition was the big factor. He noted that that both applications met the minimum requirements to have a golf ball net. One of the bigger selling issues on this application, besides the support of the neighbors across the street on Indian Wells, who would be looking at that net, had been that this lot did not have the views. Mr. Burkhardt said the obstruction of the neighbors' views had been an issue on the Lueders' application. Mr. Burkhardt said the neighbors in this instance wanted the fence to hug the existing 40' large trees, which already obscured their views. The neighbors felt that the fencing would be unnoticeable and have minimal impact on the community. Mr. Burkhardt said that staff recommended approval. Tom Denver, 10823 N. Indian Wells Drive(across from the applicant) He said he was in favor of the fence. He stated that the applicant had been hit in the head by a golf ball while she had been on her patio and now had a black eye. He was not opposed to this fence and felt it was a good thing. He said his children had almost been hit. He did not think that a person should have to live in such a situation. He said that with the fence up against the trees,they did not have any opposition to the fencing,as they would not see it. Jean Schrader,applicant She said she bought her home three years ago. At that time, she had inquired if the neighbors in the area had gotten many balls in their yards. They responded maybe one or two a year. She stated that she had just spent$2,000 on a steel garage door. She confirmed that she had a golf ball hit her while sitting out on her patio a week ago last Tuesday, which broke her glasses. She displayed the injury. She explained that the time of the incident, she had been facing the garage door. She said her friends were afraid to park their cars in front of her house and they park down the street or they park in her garage. She said that her practice was to close the garage door before she even gets out of her car because the balls come right into her garage. Ms. Schrader said there were more and more golfers all the time and not all of them are good golfers and some were rude. She asked the Council to favorably consider her application. kifieMayor Morgan reconvened the regular session at 10:02 p.m. AGENDA ITEM#13- CONSIDERATION OF A SPECIAL USE APPLICATION TO PERMIT A 25 FT. GOLF BALL FENCE IN THE "R1-10 RUPD" ZONING DISTRICT LOCATED AT 10822 N. INDIAN WELLS DRIVE, AKA FINAL PLAT 401A,BLOCK 8,LOT 3, CASE NUMBER SU2001-01. Vice Mayor Wyman MOVED to approve the special use application as presented and Councilwoman Hutcheson SECONDED the motion. Councilman McNeill AMENDED the motion to require that the fence and net remain in good repair and significant quantities of debris be promptly removed from the fence and Councilwoman Fraverd SECONDED the amendment. The amendment to the motion CARRIED unanimously. The amended motion CARRIED unanimously. AGENDA ITEM#14-PUBLIC HEARING TO RECEIVE COMMENTS ON A PROPOSED SPECIAL USE PERMIT FOR A WIRELESS COMMUNICATIONS FACILITY AT LA VIDA BUENA CONDOMINIUMS, LOCATED AT 16263 E. CHIQUITA DRIVE, CASE NUMBER SU2000-09. Mayor Morgan recessed the regular session of the Town Council and opened the public hearing at 10:04 p.m. Ms. Drake reviewed that this application for a new wireless facility was being applied for by Sprint PCS. The applicant proposed to put in a new equipment shelter in the common area and replace the existing flagpole with a new flagpole, which would be approximately two feet shorter and slightly larger in diameter. The flag pole would be painted white, fly Nibothe American flag, and would be lit just as the existing flagpole was. The new equipment shelter would be proportional to the existing condominium unit in that it was larger than the allowable equipment shelters that the Town had in the code, Town Council Minutes Regular and Executive Session 3/01/01 Page 18 of 24 but it was proportional to the area in which it would be placed. She pointed out that there would be new landscaping put in and a pad site would be provided for the emergency generator that might be required for temporary use in case of a cower outage. She said there had been a letter of support received from the La Vida Buena Property Owners Association. r64s. Drake said the applicant was available to the Council if there were any questions. She said that in evaluating this project, the applicant was using an existing pole in the community so there wasn't a new pole being added to the community, which would minimize the number of poles if they had to put in a new one. She explained that the pole did not conform to the zoning regulations as far as setback because there was a publicly dedicated street within the condominium unit itself. Ms. Drake reviewed that from the property line on the exterior of the condominium unit. It did conform to the setback. But since the existing pole was being replaced, she felt that staff could recommend approval on that point. She noted that the proposed shelter was over sized but she did recommend approval for that because it was proportional to the existing condominium in the place where it would be placed. She acknowledged that the site was zoned residential, however there were existing sites within the community where there were cellular units that were located in residentially zoned areas, such as the Baptist Church, the Lutheran Church and the High School. Ms. Drake stated that staff and the Planning and Zoning Commission were recommending approval of the application with stipulations as listed in the staff report with one additional stipulation by the Engineering Department: • That the applicant apply for an easement abandonment when they apply for their building permit, because it was a dedicated easement and public utility easement and they hold common area grounds. Ms. Drake stated that the Home Owners' Association President and the applicant were here if there were any questions. Councilman McNeill asked why the azimuth directions were significant and required a stipulation. Ms. Drake replied that the Planning and Zoning Commission had requested this with some concern that there would be some directional radiation that was not a concern with the type of application. The Planning and Zoning Commission wanted to ensure that would not happen. Councilman McNeill asked if they had evidence that these directions would correct the problem. Ms. Drake responded that these directions were what had been submitted on the plans. Director Valder said that there was a unit right next to the flagpole and the applicant was willing to have those panels in a way that it would not be aimed right at the unit. Jerry Quinn, 16262 E. Rosetta(member of the Board of Directors on the La Vida Buena Properties Association) Lae said they supported this project. He reported that the Board had not heard any opposition from anyone in their —community. They requested that the Council approve the project. Michael Cronin, 3333 E. Camelback Road(Sprint representative) He stated that Sprint tries very diligently to work within the local communities to locate and design antenna that fit in the community. He said they were able to address two of the more significant issues, which were using an existing vertical element as well as doing a design in which the antennas were entirely enclosed. He acknowledged that they had worked well with the La Vida Buena Home Owners. He pointed out that the height had been reduced several feet. Mr. Cronin said he was unaware of any opposition to the project. Mayor Morgan reconvened the regular session at 10:12 p.m. AGENDA ITEM#15-CONSIDERATION OF A SPECIAL USE PERMIT FOR A WIRELESS COMMUNICATIONS FACILITY AT LA VIDA BUENA CONDOMINIUMS, LOCATED AT 16263 E. CHIQUITA DRIVE, CASE NUMBER SU2000-09. Councilwoman Fraverd MOVED to approve the special use permit as presented and Vice Mayor Wyman SECONDED the motion Vice Mayor Wyman congratulated staff and the applicant on a very concise and well presented presentation that covered all of the bases. He alluded that the Council always received the necessary information by asking questions in order to make a decision but he was particularly impressed with this presentation. Councilman McNeill expressed the same sentiments. Replacing the existing element with a new one was keeping within the Town's policy and made it easier for the Council to approve an application. Town Council Minutes Regular and Executive Session 3/01/01 Page 19 of 24 Councilman Kavanagh commended the applicant for meeting with the community residents and getting them on board with the project so that there wasn't any opposition. He thought it was great that it was a stealth facility hidden in a LorFlagpole because that meant there was one less ugly array one that everyone would have to deal with. The motion CARRIED unanimously. AGENDA ITEM#16-DISCUSSION AND POSSIBLE ACTION REGARDING MONUMENT SIGNS FOR THE CRESTVIEW SUBDIVISION AT PALISADES AND SHEA. DISCUSSION WILL INCLUDE A POSSIBLE AMENDMENT TO THE DEVELOPMENT AGREEMENT, POSSIBLE ABANDONMENT OF PUBLIC RIGHT OF WAY AND A PRESENTATION BY MCO OF A SIGNAGE PLAN. Mr. Farrell stated that Mr. Larsen was here to present to the Council some signage issues that he had misunderstood and had encouraged the master developer to send the Town an amendment to the development agreement. Once he understood the issues, it became apparent that the development agreement was not the right place to be for a number of reasons. He said it appeared that if the Council was willing to entertain these signs, that either an encroachment permit or a right-of- way abandonment (if the locations could not be determined) would facilitate the monument signs either as on premise or off premise. Mr. Farrell asked the Council to change their normal rules and consider allowing Mr. Larsen to make his presentation before the Council made their motion on this item. He acknowledged that it would be difficult to advise the Council on what the motion should be until the presentation was made outlining the exact location of the signs. Mayor Morgan requested that the presentation be made first. Mr. Larsen 9472 E. Conquistadors Dr., Scottsdale He brought in a series of panels for the presentation. He said that the request was for two monument signs that were proposed for the intersections of Shea/Crestview and of Shea/Arista. He said those two locations were the penetrations that were north on Shea immediately west of Palisades. The locations of the proposed monument signs occur in the northwest quadrant of both intersections. He noted that this was an unusual right-of-way. He believed that the Town of Witw2ountain Hills had as their right-of-way 160' for a principal arterial as reflected in the ordinance. The right-of-way here, rather than 160', was 400'. If the Council were only to look at that portion of the right-of-way that exists in the curbline to the right-of-way, the principal arterial in the Town's ordinance suggested 26'. He noted that they had 145', so they were proposing to locate the monument signage 25' back from the curbline. Mr. Larsen explained that the 20' existed on both the northwest quadrant of Crestview and the same quadrant of Arista but there was a guardrail around a portion of that section. He found that from a standpoint of height, they were rather modest proposals relative to signage. He described the monument signage as rather relaxed and subdued from the standpoint of height and they met the ordinance criteria. He noted that there was a large cut area that comes down from the northside of Shea and the sign would embrace the toe of that slope. He said they were consistent with the height regulations relative to the five feet above curb adjacent to the signage. He said they were also consistent from the standpoint of the amount of signage. He pointed out that they were not asking for any variations relative to the signage itself. Mr. Larsen stated that the design captured the flavor of the intersection of Palisades and Shea where the boulders were located. He explained that the boulders would flow down on the northside of Shea and would be integrated into the ground plan and not just set on top of the ground. The boulders would be part of the monumentation. Mr. Larsen said that the monumentation would be conformed to accommodate the landform of those two locations and would reflect the architectural component of the gatehouse. He reviewed the pallet and architectural features of the gatehouse, which were integrated in with the monument and signage and described the type of vegetation that would be planted. Mr. Larsen covered the lighting of the signage. The signs of both quadrants would be modestly illuminated with inset spots that would light the face of the signs and would not be visible from sidewalks or the traveling public. Director Valder said that the Town had received a sign permit application as well as an application for some walls that MCO wanted to construct on another part of the site last summer. The sign permits were rejected for a number of reasons. He pointed out that the signs on Shea were proposed within the Shea right-of-way, which was specifically prohibited in the tkowlown Code. He said staff had worked long and hard to remove signs from Shea Blvd. including political signs, frame signs, and other signs. This application was in real conflict with that regulation. Director Valder said that the height of the Town Council Minutes Regular and Executive Session 3/01/01 Page 20 of 24 signs were not per Town Code. What the subdivider did when the project was getting graded was that they created these mounds knowing that a sign application would come in after that with the mounds three to four feet higher than the curb. 1-le said the applicant intended to put the sign on top of the mounds so that the signs themselves might be three to five feet igh, but the top of the sign would be much higher than that, as it relates to the curb element. He said staff looked for some clarity on the grading and the height of the sign. Director Valder noted that the sign on Palisades was within the applicant's property. It was just that they were too high. He said they would be free to construct a subdivision identification sign anywhere on their property, but the maximum height would only be 31/2' if it was within the front or street side yards setback. He noted that, on the plans that he had reviewed, the applicant was requesting a 5' high sign and it was too high because of the setback. He explained that if the Council were willing to permit those signs within the right-of-way, that there was no standard for sign height within the right-of-way. He would look at it as if the intention was to have signs not higher that 31/2' within a setback of the zone. He would extend given normal right-of-way widths where there would typically be 10'— 20' behind the curb to the right-of- way line and then the setback thereafter. If the Council was inclined to permit the signs within the right-of-way or abandon a piece of the right-of-way, than the over height nature of the sign should still be consistent with other permanent signage throughout the Town. If they want the sign closer to the street, it was a 31/2' height limit and if they wanted it to be higher up, the sign needed to be setback further from the street. His interest was from a policy standpoint regarding permanent signs in the Shea right-of-way. He suggested that the council should consider whether or not they wanted to take that step. He did not know how many other future projects might come to the Council on Shea Blvd. that might ask for the same consideration. The wide right-of-way width was uniform in places with the exception of abandonments that the Town had already approved for the Firerock Country Club. He proposed that the Council might want to look at putting forth an evenhanded policy if they wanted to continue to permit signs in the Shea right-of-way. Director Valder acknowledged there were ways to accomplish this if the Council wanted these signs to be constructed. The abandonment of a portion of the right of way would get the Town out of the code requirement. It was his understanding that the Engineering Department had a problem with any further abandonments of Shea right of way. The only other way would be through an encroachment permit and then the Town would have to make some type of modification to that Town Code regulation, which prohibited such signage. Mayor Morgan asked where would the sign be located that said "this is Crestview" if traveling east on Shea. Director Valder said the sign would be visible and not within her line of sight. She asked how she would see the sign if she were driving. Director Valder said the driver would have to turn his or her head to look at it. Councilwoman Fraverd asked where the staff report was on this item. Mr. Farrell apologized for the lack of the staff report. He had been under the impression that the signs were not in the Shea right-of-way, so it was going to be a relatively easy item in the form of an amendment to the existing development agreement. It later became apparent that the signage was in the Shea right-of-way and in direct opposition to one of the existing Town ordinances. He stated that the developer had some time constraints and staff had put it on the agenda in order to come up with a solution to this problem. Councilwoman Fraverd said she had been looking for a staff report from Director Valder and the engineer if those were the appropriate staff people. Mr. Farrell said that there had not been enough time to get that report together. Councilwoman Fraverd stated she would feel more comfortable not acting on this tonight and preferred to have additional time. Mr. Farrell proposed that if the applicant could live with a two-week continuance, staff would recommend it. Mr. Larsen said the applicant could live with the two-week continuance. He asked for the opportunity to respond to some of the comments made by Director Valder. Councilwoman Fraverd replied that she would be more receptive to those comments in two weeks. Mr. Larsen said that from the standpoint of height they would not disagree with the height consideration. He said there was a toe that had a nice undulation and aesthetically it made sense. He asked that since there would be a two-week continuance, that the Council take the opportunity to look at it. From the standpoint of ordinance height, he simply did not disagree and would adhere to the Town's ordinance on the height component relative to the curb height. With regard to the second component part that had to do with the right-of-way, this particular piece of property was approved under a separate development agreement with the County, which required compliance with County standards. He said that the agreement didn't recognize the right-of-way signage component in the same fashion as the Town. He asked Mr. Lickman to read from the development agreement between the developer and the County. Mr. %gooLickman said he had been talking with Mr. Nordin for over five months in an effort to resolve this issue. He confirmed and explained the timing issue for them with this project. Town Council Minutes Regular and Executive Session 3/01/01 Page 21 of 24 Councilwoman Ralphe said that since there would be a two-week continuance for more planning, she suggested that the applicant consider not placing the signs in the Shea right-of-way. She proposed that the whole project might have a better 4620:chance of being approved, in a timely manner, if the signs were not placed in the Shea right-of-way. Mayor Morgan asked if the precedent was with the County or the Town. Mr. Farrell pointed out that the proposed signs were not on Parcel 2 but in the right-of-way. If the signs were to be located on Parcel 1, County regulations would apply. Mayor Morgan said that if the signs were to be moved,where they were out of the line of sight, the applicant could go with the County regulations. Mr. Farrell said that was correct. Councilwoman Fraverd MOVED to continue this item for two weeks and Vice Mayor Wyman SECONDED the motion, which CARRIED unanimously. AGENDA ITEM#17-CONSIDERATION OF ORDINANCE 01-08 AMENDING SECTION 7-1-2, CONFORMANCE TO ZONING ORDINANCE OF THE FOUNTAIN HILLS TOWN CODE. Director Valder said that in an unusual twist, the Planning and Zoning Commission, who usually initiates amendments to the zoning code, this time initiated an amendment to the Town Code. This was the appropriate place in the regulations to address the matter with which they were concerned. He pointed out that over the last few years the Town has been active in making modification to the Zoning Regulations. He explained that sometimes these regulations could have a significant effect on a planned project. He gave an example. There were two fairly large multi-family projects that made a permit application on the last day prior to the effective date when the height regulation went from 40' limit to 30'. As was the Town's custom, when someone makes a complete application prior to the effective date of a rezone, they get in under the wire. As long as the applicant kept the permit application and the permit effective, the Town would not hold them to the new standards. Director Valder explained that what happened next was found to be unnerving by members of the Planning and Zoning Commission. He said that the Town Code currently has a fairly liberal policy of granting extensions. This applicant came %yin and applied for their permit and they were able to get an extension on their application for another six months. They would have normally been required to pull the permit within six months of the permit application and they now got an extension of an extra six months. Director Valder said that these projects were clearly not ready to be built and they simply made their application in a successful attempt to vest their project in. Once the permit was pulled, they were again successful in having extensions approved on the building permit where minimal construction progress was made. One project was a 40+-unit project and they went for a year with only excavating out a footing that was maybe 25' long. That approved inspection, which was the standard, and got them an extra six-month extension. Director Valder said that the Planning and Zoning Commission asked him to prepare a modification (Ordinance 01-08), which closes off those extension loopholes. If the application were to be made on the last afternoon, prior to the effective date of that regulation and the permit was pulled within six months and reasonable construction progress was made by the applicant there wouldn't be a problem. Even if the applicant were not prepared to pull the application within six-months, an extension could be requested. What this ordinance stated was that if the zoning regulations had changed in the interim, the extension would not be approved. The applicant could not claim that vesting backwards any longer. If an applicant wanted to get in under the wire of a zoning change, he had six months to pull the permit. If the zoning regulations hadn't changed and current reasons would still permit staff to give the applicant an extension on the permit application, staff would. This would only affect those projects where extensions were requested when zoning regulations had changed. He stated that this was the Planning and Zoning Commission's attempt to close the grandfathering loophole. Councilwoman Ralphe MOVED to approve Ordinance 01-08 as presented and Councilwoman Fraverd SECONDED the motion, which CARRIED unanimously. AGENDA ITEM#18-CONSIDERATION OF THE PROPOSAL FOR PROFESSIONAL SERVICES Ilikr,SUBMITTED BY LOU REITER AND ASSOCIATES IN THE AMOUNT OF $35,600 TO CONDUCT A LAW ENFORCEMENT AGENCY STUDY FOR THE TOWN OF FOUNTAIN HILLS. Town Council Minutes Regular and Executive Session 3/01/01 Page 22 of 24 Mr. Nordin said pursuant to past discussions staff had solicited this discussion. The staff would be happy to take any direction given by the Council on this item. ‘IPVice Mayor Wyman MOVED to approve the proposal for professional services submitted by Lou Reiter and Associates in the amount of$35,600 as presented and Councilman Kavanagh SECONDED the motion Councilman McNeill asked what the time frame would be. Mr. Nordin estimated it would be ready about June lst and that would be in time to make the appropriate considerations for the new budget year. Councilman Kavanagh said he had some suggestions in terms of the essentials and tasks for evaluation. He asked that they address the efficiency of having two departments overlapping each other. Mr. Nordin said that was included in the proposal. Councilman Kavanagh wanted to see a study of service levels in terms of response times and efficiency. Mr. Nordin said that may not be specifically included, but he would ask the consultant. Councilman Kavanagh said the other thing was, and he was not suggesting that they get involved in a really expensive addition to this study, but tap into citizens' attitudes in terms of the distinction between the marshals and the sheriff. Mr. Nordin said that was not a part of the scope of this study and if the Council desired he would take that as direction. Councilman Kavanagh said he did not want it to become a major part of the study, but as they were interviewing and tapping people perhaps they could try and extract that information. Councilman Kavanagh said that in terms of the target interviews he had noticed that one of the groups left off was L.E.A.P. He asked that the consultant have some discussions with them. Mr. Nordin said that was not a problem and he had thought they were included. Councilman Kavanagh said that in addition to speaking to the Marshals and the Sheriffs, it might be useful to interview some of the surrounding chiefs,especially the Paradise Valley Police Chief who had undergone a similar transition in order to find out the pros and cons that he experienced. Councilman Kavanagh suggested that they also talk with Scottsdale and Mesa, since he understood that they might be in a position to provide us with transport support services. He noted that would be one of the issues before Fountain Hills during a transition period. Councilwoman Fraverd said she was in favor of hiring a consultant to help sort out the law enforcement dilemma. She felt that the timing wasn't right. She said she was in favor of having a proposal by June 1st but because of the financial tkhir that the Town now faced, she would not be supporting this at this time. She wanted time to get the Town's financial house in order before moving on into another area. Vice Mayor Wyman said this issue has been going on a long enough. He felt that the Council owed it to the law enforcement personnel as well the Town for what was a modest amount of money to proceed with this. That was the major reason he suggested that the Council approve this at this time. Mayor Morgan said she knew other studies had been done. She asked if this study was any different other than it was being done this year. Was the timing the only difference? Mr. Nordin responded that there were some additional factors in this particular study that had not been done in the past. The first one that was done ten years ago was done by the Dept. of Public Safety. He remembered that they were looking at simply the costs of establishing a police department.The scope of this study goes farther than that. The work on the last one, which was done in-house approximately four years ago, was an update of the costs in terms of establishing a new police department. More time was spent on the capital costs required. He noted that those costs were quite a bit less four years ago than they were ten years ago. Mr. Nordin said last time there had been a focus on the contract with the Sheriffs office. He explained that this particular study did not contemplate going into that kind of protracted long analysis of what the contract should be. He stated that this study was particularly different from the prior efforts. Mayor Morgan had asked because she did not like repeat performances at a price. If this had been done before, she did not want to repeat it. Mr. Nordin said it was a different focus. Councilwoman Hutcheson thought that the research study was a good idea. If the Town wanted to get a true unbiased comparison and opinion of how to deliver law enforcement to the citizens and what the best approach was for Fountain Hills, that was the way to go. She did not see this as a huge amount of money to spend. She agreed that the Town had a number of different situations that they were facing. She did not feel tremendous pressure from the public to proceed with this issue right now. She said that the citizens were telling her to finish the community center, look at the inside of the ,.nuseum, consider the seniors who were bursting out of their facility, and consider a youth facility. She said that the Council also needed to consider the lease of Town Hall and what should be done with that. She thought this was a Town Council Minutes Regular and Executive Session 3/01/01 Page 23 of 24 worthwhile study and it wasn't a lot of money but she needed to consider where the $2.1 million was and would the Town get it back. She said the timing was not right. LCouncilman McNeill echoed Councilman Kavanagh's comment and asked that L.E.A.P. be included in the discussions. He wanted to see them named in the study. He proposed that the Council proceed with the study because for the amount of money involved it wasn't worth putting off any longer. He thought the study would give the Council professional advice on where the Town can achieve some efficiency in the law enforcement efforts. He thought it might be possible to identify savings. Councilwoman Ralphe said she wished this was not on the agenda tonight because there were enough projects and issues before the Town at this time. She said she would vote for it as she favored hiring a consultant to prepare the study. She felt that the Town could benefit from the unbiased professional input that it would given. The motion CARRIED on a vote of 5 — 2, with Councilwoman Hutcheson and Councilwoman Fraverd casting the nay votes. AGENDA ITEM#19-CALL TO THE PUBLIC. No one came forward. AGENDA ITEM#20-ADJOURNMENT. Councilwoman Fraverd MOVED to adjourn and Councilman McNeill SECONDED the motion, which CARRIED unanimously. Mayor Morgan adjourned the meeting at 11:00 p.m. TOWN 0 FOUNT I HILLS S aron Morgan,Ma of ATTEST: (CL� Cassie B. Hansen, Director of Administration/Town Clerk PREPARED BY: 61 :j:./' f� �u , Bev Bender,Executive Assistant CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular and Executive Meeting held by the Town Council of Fountain Hills on the 1st day of March 2001. I further certify that the meeting was duly called and that a quorum was present. DATED this 15th day of March 2001. 6.44.42t2,1b atAA_L.../ Cassie B. Hansen, Director of Administration/Town Clerk Town Council Minutes Regular and Executive Session 3/01/01 Page 24 of 24