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HomeMy WebLinkAbout2001.0503.TCREM.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR AND EXECUTIVE SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL May 3,2001 Mayor Morgan called the regular session of the Town Council to order at 5:30 p.m. Councilwoman Ralphe MOVED that the Council convene the executive session and Councilman McNeill SECONDED the motion,which carried unanimously. AGENDA ITEM#1. PURSUANT TO A.R.S. §38-431.03.A.4, 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 (CONDEMNATION ACTION-TOWN OF FOUNTAIN HILLS V.MCO PROPERTIES). AGENDA ITEM#2. RETURN TO REGULAR SESSION at 6:35 p.m. Following the pledge to the flag by Joseph LaGraffe of Boy Scout Troop 343 (Cobra Patrol) and a moment of silent reflection, the roll call was taken. ROLL CALL - Present for roll call were the following members of the Fountain Hills Town Council: Mayor Sharon Morgan and Councilmembers Leesa Fraverd,Sharon Hutcheson,John McNeill,John Kavanagh,and Susan Ralphe. Also present were Town Manager Paul Nordin, Town Attorney Bill Farrell, Director of Public Works/Town Engineer Randy Harrel, Assistant Public Works Director Tom Ward, Director of Administration 4600 Cassie Hansen,and Director of Community Development Jeff Valder. Vice Mayor John Wyman was absent. Mayor Morgan read the consent agenda items 1 -3. AGENDA ITEM#1. CONSIDERATION OF APPROVING THE MEETING MINUTES OF APRIL 17 AND 19,2001. AGENDA ITEM#2. CONSIDERATION OF A PRELIMINARY AND FINAL PLAT FOR THE PROPOSED 2-UNIT CONDOMINIUM PROJECT, ASHBROOK CORNER CONDOMINIUMS, LOCATED AT 16414 E. ASHBROOK DRIVE, AKA PLAT 104, BLOCK 4, LOT 1, CASE NUMBER S2001-09. AGENDA ITEM#3. CONSIDERATION OF THE RATIFICATION OF BID AWARD TO INTERSTATE MECHANICAL CORPORATION IN THE AMOUNT OF $33,554.00 FOR AN EVAPORATIVE CONDENSER SYSTEM FOR TOWN HALL BUILDING C. Councilman Kavanagh MOVED to approve the Consent Agenda as read. Councilwoman Ralphe SECONDED the motion. A roll call vote was taken with the following results. Councilman McNeill- aye Councilwoman Hutcheson- aye Councilwoman Fraverd- aye Councilman Kavanagh- aye Councilwoman Ralphe— aye Mayor Morgan- aye The motion CARRIED unanimously with a roll call vote. AGENDA ITEM#4. INTRODUCTION AND PRESENTATION OF CERTIFICATES TO FIVE- YEAR PARTICIPANTS IN THE COMMERCIAL ADOPT-A-STREET PROGRAM: Town Council Minutes Regular and Executive Session 5/3/01 Page 1 of 7 Councilman Kavanagh and Wally Hudson assisted Mayor Morgan in the presentation of 5-year anniversary certificates to: Christ's Church Youth Group—not present Sunset Pools -not present VFW Post#7507—representatives present Fountain Hills LEADS Association(FLAG)—representative present Fountain Hills Neighborhood Girl Scouts—representatives present AGENDA ITEM#5. PUBLIC HEARING ON A PROPOSED SPECIAL USE PERMIT REGARDING HAZARDOUS MATERIALS USE AND STORAGE FOR US CURRENCY PROTECTION CORPORATION,LOCATED AT 16508 E.LASER DRIVE,SUITE 101, CASE NUMBER SU2001-04. Mayor Morgan recessed the regular session of the Town Council and opened the public hearing at 6:42 p.m. Senior Planner Drake stated that this was a request for a Special Use Permit to allow use and storage of hazardous materials as part of the normal business operations of US Currency Protection Corporation. She described the facility layout as a 6,300 square foot industrial building, which housed both administrative offices and a manufacturing facility. She noted that they manufactured tear-gas dye packs. She explained that the product was used primarily by the banking industry to prevent loss of funds and contained a combination of red dye,red smoke and a tear gas irritant. Ms. Drake said that the hazardous materials contained in the dye-pack were mixed and loaded in pouches in an 80 sq. ft assembly room that was isolated from the rest of the main manufacturing floor. She stated that all of the hazardous materials were stored in this room and that the room contained a 10"filtered ventilating system to prevent noise,fumes, or gases from being emitted from the facility. Ms. Drake pointed out that the chemicals were delivered to a back loading area of the building via UPS trucks in 20 lb. packages. Each package contained approximately a gallon sized metal drum protected by a cardboard corrugated cover. Employees handling the chemicals wore a reusable breathing hood, protective overall suit and disposable latex gloves. She confirmed that the gloves and the empty containers were placed into their trash containers outside for disposal. Ms. Drake clarified that Waste Management was aware of the materials being disposed of in their containers. Ms. Drake had contacted Onyx Environmental (a hazardous waste disposal company) to review the materials with them and they had no concerns with regard to the disposal of the containers or the gloves into the trash dumpster. She acknowledged that the manufacturing, processing, and storage of hazardous materials were permitted in industrial zoning districts with an approved Special Use Permit. Ms. Drake explained that there were no requirements or regulations in the Firerock Industrial Center Planned Unit Development that would restrict this use at this location. Ms. Drake pointed out that this business had been operating from this location since 1996 and under the current ownership since 1995. She stated that the applicant had been informed that a Special Use Permit was required when the company applied for their business license renewal. Although the applicant had been in violation for a number of years, the approval of this Special Use Permit would bring them into compliance with the code. She stated that both the Marshals and the Fire Department were aware of the nature of the materials used at this site and would regularly review the facility for violations in handling. She confirmed that there had not been any accidents or violations recorded. Ms. Drake verified that the Planning and Zoning Commission recommended approval of this application with one stipulation requested by the Marshals Department. She pointed out that the stipulation had since been withdrawn. Staff was also recommending approval of this application. Mayor Morgan reconvened the regular session at 6:45 p.m. Town Council Minutes Regular and Executive Session 5/3/01 Page 2 of 7 AGENDA ITEM#6. CONSIDERATION OF A PROPOSED SPECIAL USE PERMIT REGARDING HAZARDOUS MATERIALS USE AND STORAGE FOR US CURRENCY PROTECTION CORPORATION,LOCATED AT 16508 E.LASER DRIVE,SUITE 101, CASE NUMBER SU2001-04. Councilwoman Hutcheson MOVED to approve the special use permit as presented and Councilman McNeill SECONDED the motion. Councilman McNeill stated that he would support this application. He said it appeared that the applicant had done an excellent job with their operation without any problems. He pointed out that there were relatively small amounts of hazardous material involved. Since this company had been operating without any accidents in the last fifteen years, he felt they had a good track record and the Council could go ahead and make the company legal. The motion CARRIED unanimously. AGENDA ITEM#7. DISCUSSION AND POSSIBLE ACTION REGARDING AUTHORIZATION TO RETAIN COUNSEL TO INITIATE LITIGATION IN SUPERIOR COURT OR DISTRICT COURT AGAINST BNY WESTERN AND MERRILL LYNCH IN WHATEVER NAMES THEY DO BUSINESS UNDER AS WELL AS ANY OTHER ENTITIES KNOWN OR UNKNOWN WHO MAY BE LIABLE TO THE TOWN UNDER ANY THEORY OF LAW OR EQUITY FOR THE BOND FUNDS DEPOSITED WITH BNY WESTERN AS TRUSTEE AND CURRENTLY NOT AVAILABLE FOR INTENDED USE. Mr. Nordin reviewed that he had received a call from the officials from the Bank of New York. They had informed him that the bank was rejecting the partial settlement offer that he had proposed to avoid any potential adversarial relationship that the Town might have with BNY. He explained that his offer would have partnered the Town with BNY in a lawsuit against Merrill Lynch. In spite of the Town's patience and willing to work through all of the issues with the Bank of New York, the bank had decided to say no. Because of this refusal, staff believed that all avenues had been exhausted short of litigation. Therefore, staff was requesting that the Council authorize staff to retain legal counsel (Scott Ruby of the firm of Gust Rosenfeld) to begin litigation proceedings against both BNY and Merrill Lynch. Staff was firmly convinced that the responsibility for this transaction rested with one of these two firms in terms of making the erroneous decision to invest idle funds in the PG&E commercial paper. If approved, litigation should commence within one to two weeks. Councilman Kavanagh MOVED that the Council authorize staff to retain counsel to initiate litigation against BNY Western and Merrill Lynch as presented and Councilwoman Ralphe SECONDED the motion. Councilman McNeill reviewed that previously discussions with BNY had indicated that they might be willing to advance the Town a portion of the funds as needed to fulfill the Town's Community Center construction requirements. He asked if there was any hope that suggestion was still possible. Mr. Nordin replied that proposal had been rejected. Councilwoman Ralphe stated that BNY had not used the highest professional standards when they invested the Town's money. She pointed out that there had already been warnings from bond rating agencies when that transaction took place. She felt that the Town had the right to expect a professional to act in a highly professional manner. Councilwoman Ralphe agreed that litigation was now the Town's only recourse. Councilman Kavanagh asked how this lawsuit would interface with the PG&E bankruptcy proceedings. Mr. Farrell replied it wouldn't interface at all. He explained that under the bankruptcy proceedings the Town would eventually receive notification as to when and how the Town's claim would be presented to the bankruptcy court. He stated that this action would be totally independent. Mr. Ruby had indicated he would file this suit in Maricopa County Superior Court. Mr. Farrell pointed out that the bankruptcy would be filed in a California federal court. Councilman McNeill stated this action was the Town's only viable means of recovery in the short term as opposed to waiting for the bankruptcy to unfold. He reiterated that the Town had a claim in the bankruptcy Town Council Minutes Regular and Executive Session 5/3/01 Page 3 of 7 case. He asked if the Town was lucky enough to see that claim resolved at 100% on the dollar, would that resolve this proposed litigation completely. Mr. Farrell agreed that any funds recovered prior to the adjudication of the bankruptcy would be a credit from the person from whom it was recovered. Should the bankruptcy terminate prior to this litigation then it would be an offset. He explained that in either event, there wouldn't be a windfall on the Town's part,but there might be an opportunity for earlier contributions. Councilman Kavanagh asked if there would be the possibility of negotiating an out of court settlement with BNY whereby they would agree to make up any shortfall. Mr. Farrell agreed that possibility would always be welcomed. He noted that staff would explore any option that would get the Town as close to whole as possible. Mr. Farrell announced that members of staff had been providing pieces of information to him with regard to PG&E's situation. He was pleased that staff was attuned to the Town's problems in this area and was actively looking for various useful information. He pointed out that there had been some nice things come forward from the members of the Town's staff who were not directly related to this issue but who shared the concern that the whole community had. He said it was encouraging to see this type of communication from those who were not directly involved in this process by their offering any information in hopes of assisting those staff members who were involved. Mr. Nordin confirmed that Scott Ruby had informed him that the Town would be suing both BNY and Merrill Lynch for gross negligence and security fraud among other charges. The motion CARRIED unanimously. AGENDA ITEM#8. CONSIDERATION OF INITIATING AN AMENDMENT TO CHAPTER 5.06 YARD, LOT, AND AREA REQUIREMENTS, SUBSECTION F. SWIMMING POOLS, OF THE ZONING ORDINANCE FOR THE TOWN OF FOUNTAIN HILLS, SO THAT A NEW SWIMMING POOL AND A NEW POOL ENCLOSURE FENCE OR WALL(BUT NOT POOL EQUIPMENT) MAY BE BUILT WHILE OBSERVING A STREET SIDE-YARD SETBACK OF BETWEEN TEN FEET(10') AND TWENTY FEET(20')IF SEVERAL CONDITIONS ARE MET. Director Valder stated that at the last Council meeting staff had been directed to bring this text amendment back after it had been reworded by incorporating the language suggested by the Town Engineer. He stated that the Town Engineer's attached memorandum contained seven concerns. Director Valder said that his new paragraph (F)(4) had been added to address these concerns. He explained that this paragraph had been added to provide the Town Engineer some latitude so that if a wall within the setback created problems that concerned the Town Engineer, he would have veto power over that wall. Director Valder reviewed the language that he had included in his prior presentation made at the last Council meeting. He reviewed that his memo described the nature of"spot zoning". He said that this came into play when a resident came in and they were not be able to qualify for a variance. Staff would then try to help them out with by proposing a zoning text amendment. He explained that past direction that staff had received from the Council has been that the Council would review these text amendments on a case-by-case basis. The proposed text amendment before the Council was created to help out a property owner. He reminded the Council that the action tonight was only to initiate the process. He asked the Council for direction as to the merit of this text amendment. Councilman Kavanagh MOVED to initiate the amendment to Chapter 5.06 of the Zoning Ordinance as presented and Councilwoman Hutcheson SECONDED the motion. Councilwoman Fraverd asked why the property owner did not qualify for a variance. Director Valder responded that staff did not know yet that they didn't qualify for a variance. He explained that the Arizona Revised Statutes lists the findings that the Board of Adjustments must follow in order to approve the variance. He acknowledged that some of the findings were hard to make. An example of one of the findings by which the property could be granted a variance was the situation that the property owner did not have economic use of the property. Since there was already a home existing on the lot and this variance would only help them put in Town Council Minutes Regular and Executive Session 5/3/01 Page 4 of 7 swimming pool, it would be a tough argument that the property owner did not already have economic use of their property. The other findings had to do with whether the variance would negatively impact the ighborhood and surrounding property owners. He explained that would be more subjective than objective. Director Valder said that staff had been very strict and conservative in their recommendations to the Board of Adjustment members to make sure that the variance application met all of the findings. Director Valder noted that the property owners in this particular case had not yet applied for a variance. He said that staff continues to try to give property owners an indication as to whether or not staff felt they met the findings. He admitted that this would be an administrative procedure and even if the Board of Adjustment rejected the application, the property owner could appeal the decision to Superior Court. Councilwoman Fraverd asked if he had discussed these options with the property owners and if staff was of the opinion that they would not qualify for the variance. Councilwoman Fraverd reviewed that in the variance process that staff made their recommendation for approval to the Board of Adjustment based upon the findings. She was of the opinion that the Board of Adjustment rarely went against staffs recommendations. She asked if staff had looked at those four points and advised the property owners that they should not apply for a variance. Director Valder said that he had talked with them about what he thought their chances were if they applied for a variance. He had tried to assist them by relaying that it was an expensive and time-consuming process. He said he tried to give them some indication what his recommendation would be and what he thought the property owner's chances would be with the Board of Adjustment. He pointed out that on the variance application there was ample room for the applicant to make their arguments as to why they felt the Board of Adjustments should make the finding. Without having seen the property owner's arguments, he did not know what their reasons would be and it would be difficult to advise them of their chances for approval. He said it was possible they could make a compelling case. Director Valder noted that there was room on this property owner's lot to put a swimming pool. It just wasn't where they wanted to put it. He explained that it was at this point that he had suggested to them there was pother way to get things done. He stated he strives to give everyone the same quality of information and to (wake the process available to everyone. He pointed out that in the past the Council had been responsive to making modifications to the code if they felt such a change had merit, which would be done in an open meeting such as this. Councilwoman Fraverd said she struggled with the situation that the property owner could possibly not qualify for a variance and so the Council was being asked to create an ordinance for them. She felt that the property owner was going around the Board of Adjustment by coming to the Council first. She agreed that the Council did text amendments that benefited the community as a whole but not for the individual property owners who were trying to go around a board who had been specifically created for this process. Councilwoman Hutcheson asked when the Board of Adjustment had last approved anything. Director Valder recounted that within the last two years they had approved two variances. He briefly reviewed each of these situations. Councilwoman Hutcheson pointed out that once a property owner had a home on their lot one of the conditions was scratched off from the list of considerations for the Board of Adjustment. She then asked so why go through the process? She said she would feel more comfortable with letting the Planning and Zoning Commission look at ordinance changes, take input from the public, and then let the Commission decide what they would recommend to the Council. Councilwoman Hutcheson wasn't opposed to initiating this text amendment but she wanted the Planning and Zoning Commission's input. Councilman Kavanagh pointed out that these property owners did not build this home knowing these restrictions were there as the zoning had been changed. He did not have a problem with making the zoning stricter when it was for the common good. He felt this issue had merit. Councilman Kavanagh asked if the Board of Adjustment had ever approved a case where a home already existed on a lot. Director Valder replied yes. He explained that the general concept was a variance could be approved if there were special circumstances applicable to the property having to do with its size, shape, and topography location where the strict application f the code would remove the property owner's privileges that were enjoyed by other property owners in the Town Council Minutes Regular and Executive Session 5/3/01 Page 5 of 7 same zoning district. He stated that each case needed to be looked at individually because each property had its own unique characteristics. Councilman Kavanagh addressed the concern that this would be a spot zone for one individual. He pointed out that in the staff report over fifty people had been denied swimming pools based upon this ordinance. Director Valder confirmed that permit applications had been rejected when property owners had wanted to put a wall within the street side of the setback. He noted that the problem had been the wall issue. Councilman Kavanagh stated this change would not benefit only this one party who had requested it. He noted that there would be fifty people who could benefit from this change. Director Valder replied that when those 50 other property owners had submitted their applications, staff had the applicants change their wall setbacks to 20' from the 10'. These property owners now had their walls built but did not have the enclosed use of that additional 10' strip of land. Councilman Kavanagh pointed out that this ordinance had negatively impacted a number of people. Director Valder said those property owners have had to comply with the regulations of the 20' setback. Councilman Kavanagh responded that in those property owners' minds, they felt it had negatively impacted them. Those property owners would not have asked for relief if they had not wanted it. He concluded that more than one property owner would benefit if the text were changed. Director Valder agreed there was a possibility that more property owners could qualify. Councilman McNeill expressed mixed feelings on this proposed text change. He stated he was willing to send this to the Planning and Zoning Commission for consideration but he did not know if he would support it. He did not know if it benefited the Town as a whole. He proposed language be added to the text amendment incorporating the Town Engineer's reference to existing utilities/drainage as a condition to preclude a pool or fence being built there. He felt the concept of an existing utility line was broader than what was currently contained in the proposed text amendment language. Councilman McNeill did not think pools or walls should be built over utilities. Councilman McNeill AMENDED the motion to include "or an area containing an existing utility line" after drainage easement in Item (F)(4) and Councilman Kavanagh SECONDED the amendment. The amendment CARRIED unanimously. Councilwoman Ralphe was in favor of sending this to the Planning and Zoning Commission for public input. She asked if staff could explain how a process similar to easement abandonment might work. Director Valder said that setbacks were provided through "no-build" easements. Setbacks were provided for in the zoning regulations with a specific process for varying from those regulations. He did not think that the zoning regulations could be modified in a manner similar to the easement abandonment procedure without violating the A.R.S section that enabled towns to have zoning, provide for the variance procedures as well as the procedures that were being followed tonight (text amendment to that zoning regulation). Mr. Farrell concluded that there was no one fix for this problem. Councilwoman Fraverd said she would not be supporting this text amendment because she felt there was already an existing vehicle for property owners to utilize if they want relief from the Town's ordinances. Because of her past experience on the Planning and Zoning Commission, she did not want to send the message that this text amendment was a done deal to the Commission from the Council's standpoint. She wanted the Commission to know that this was not the case. Mayor Morgan called for the vote on the original motion with the amendment, which CARRIED on a vote of 5 — 1. Councilwoman Fraverd cast the nay vote. AGENDA ITEM#9. CALL TO THE PUBLIC. Steve Vargo,Nightingale Circle,FH (Representative of MCO Realty) He stated he represented MCO Realty and two property owners Greg Manion (Lot 14) and George Radicavik Now (Lot 16), who were in favor of keeping Rhoads Court a cul-de-sac. Both property owners were upset that no one from the Town had contacted them. Both property owners had purchased their lots because the lots were on a Town Council Minutes Regular and Executive Session 5/3/01 Page 6 of 7 cul-de-sac. The proposed condemnation suit would greatly adverse their enjoyment of their property and their property values. Property Owner at 14620 Fountain Hills Boulevard He stated that they were building on Lot 13 and he asked to see more information on this issue before the Town proceeded on this action. He said this situation had been recently brought to his attention. Jeff Lesick, Sunridge Golf Course He felt that by extending Rhoads Court the Town was creating a problem, which would require the installation of extensive golf netting along the practice facility for protection of residents living on this street. He felt it would be dangerous for the public as they continually pulled hundreds of golf balls from the natural wash that bisects the proposed condemned property. In his opinion, without a major barrier people and personal property would be endangered. AGENDA ITEM#10. ADJOURNMENT. Vice Mayor Hutcheson MOVED to adjourn and Councilwoman Ralphe SECONDED the motion, which CARRIED unanimously. Mayor Morgan adjourned the meeting at 7:36 p.m. TOWN OF FOUNTAIN HILLS By: Sharon Morgan,Mayor ATTEST: (A.44-4A,..(-1-5 Cassie B. Hansen, Director of Administration/Town Der* PREPARED BY: / J:/i"'"',/', 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 3rd day of May 2001. I further certify that the meeting was duly called and that a quorum was present. DATED this 17th day of May 2001. C� Cassie B. Hansen, Director of Administration/Town Clerk Town Council Minutes Regular and Executive Session 5/3/01 Page 7 of 7