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HomeMy WebLinkAbout2001.1115.TCREM.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR AND EXECUTIVE SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL November 15,2001 Mayor Morgan called the regular session of the Town Council to order at 5:30 p.m. AGENDA ITEM#1. PURSUANT TO A.R.S. §38-431.03.A.3. AND A.R.S. §38-431.03.A.4., VOTE TO GO INTO EXECUTIVE SESSION FOR DISCUSSION OR CONSULTATION FOR LEGAL ADVICE WITH THE ATTORNEY OR ATTORNEYS OF THE PUBLIC BODY (SPECIFICALLY REGARDING THE FIRE DISTRICT); AND 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 (SPECIFICALLY REGARDING THE FIRE DISTRICT). Councilman Wyman MOVED that the Council convene the executive session and Councilwoman Fraverd SECONDED the motion, which carried unanimously. AGENDA ITEM#2. RETURN TO REGULAR SESSION Mayor Morgan adjourned the executive session at 6:20 p.m. Mayor Morgan reconvened the regular session at 6:30 p.m. Following the pledge to the flag and invocation by Councilwoman Ralphe,roll call was taken. ROLL CALL - Present for roll call were the following members of the Fountain Hills Town Council: Mayor Sharon Morgan, Vice Mayor John Kavanagh, and Councilmembers Sharon Hutcheson, John McNeill, John Wyman, Susan Ralphe, and Leesa Fraverd. Also present were Acting Town Manager/Town Attorney Bill Farrell, Director of Administration Cassie Hansen,and Director of Community Development Jeff Valder. Mayor Morgan read the items on consent(items 1-7): AGENDA ITEM#1. CONSIDERATION OF APPROVING THE MEETING MINUTES OF OCTOBER 30,31 AND NOVEMBER 1,2001. AGENDA ITEM#2. CONSIDERATION OF RESOLUTION 2001-49 DESIGNATING THE ELECTION DATE AND PURPOSE OF ELECTION; DESIGNATING THE DEADLINE FOR VOTER REGISTRATION; AND DESIGNATING THE PLACE AND THE LAST DATE FOR CANDIDATES TO FILE NOMINATION PAPERS. AGENDA ITEM#3. CONSIDERATION OF THE PERMANENT EXTENSION OF PREMISE/PATIO PERMIT SUBMITTED BY JAMES MYCZEK FOR GRAPEABLES LOCATED AT 12645 NORTH SAGUARO BOULEVARD. AGENDA ITEM#4. CONSIDERATION OF THE SPECIAL EVENT LIQUOR LICENSE SUBMITTED BY KENNETH BOWMAN FOR THE AMERICAN LEGION LOCATED AT 16837 EAST PARKVIEW. THE LICENSE WILL BE USED FOR A FUND RAISING EVENT SCHEDULED FOR SATURDAY, DECEMBER 1,2001 FROM 9:00 A.M.TO 12:00 P.M. AGENDA ITEM#5. CONSIDERATION OF THE PRELIMINARY AND FINAL PLAT FOR "THE ALTA MONTANA VISTA VILLAS CONDOMINIUMS", A 12-UNIT CONDOMINIUM PROJECT ON AN APPROXIMATELY 48,169 SQUARE FOOT LOT LOCATED AT 11806 SAGUARO BOULEVARD, AKA PLAT 201,BLOCK 3,LOT 9A, CASE NUMBER S2001-28. AGENDA ITEM#6. CONSIDERATION OF THE FINAL REPLAT FOR "FINAL PLAT OF LOT 2A, BLOCK 3,PLAT 208",A LOT JOIN REQUEST TO REMOVE THE COMMON LOT LINE BETWEEN LOTS 2 &3,BLOCK 3,FINAL PLAT 208,CASE NUMBER S2001-29. Town Council Meeting Minutes 11/15/01 Page 1 of 10 AGENDA ITEM#7. CONSIDERATION OF AWARDING THE BID FOR THE INSTALLATION AND REMOVAL OF HOLIDAY LIGHTING ON THE AVENUE OF THE FOUNTAINS TO HOLIDAY LIGHTS DECORATING IN THE AMOUNT OF$23,940. Councilwoman Fraverd MOVED to approve the Consent Agenda as read and Councilwoman Ralphe SECONDED the kise motion. A roll call vote was taken with the following results. Vice Mayor Kavanagh - aye Councilwoman Ralphe— aye Councilman Wyman - aye Councilman McNeill- aye Councilwoman Hutcheson- aye Mayor Morgan - aye Councilwoman Fraverd- aye The motion CARRIED unanimously AGENDA ITEM#8. UPDATE BY KRISTEN GENOVESE OF EVAC ON THE TOWN OF FOUNTAIN HILLS YOUTH AND FAMILY SUPPORT PROGRAM, INCLUDING SUBSTANCE ABUSE PREVENTION AND OUTREACH SERVICES. Ms. Kristen Genovese addressed the Council and gave an overview of the changes made to the substance abuse/prevention program and outreach services. She described how successful the program changes had been and how there had been an increased awareness. She thanked the Council for their support and Director of Administration Cassie Hansen for her assistance. AGENDA ITEM#9. UPDATE ON THE FIRE DISTRICT. TOWN ATTORNEY BILL FARRELL WILL UPDATE THE COUNCIL ON THE LEGAL ASPECTS OF THE TOWN'S REQUEST TO THE MARICOPA COUNTY ATTORNEY FOR A WRIT OF QUO WARRANTO AS WELL AS OTHER LEGAL ISSUES. NO ACTION IS ANTICIPATED TO BE TAKEN. Mr. Farrell gave a brief update. He stated that a meeting had been scheduled tomorrow at 1 p.m. with Mayor Morgan and Vice Mayor Kavanagh, himself, and the Town's attorney along with Mr. Hansen and Mr. Travis and their attorneys. This meeting had been called at the request of County Attorney Richard Romley to see if some meeting of the minds could forestall litigation. Both sides had been given the charge to explore various boundaries and avenues with direction from the Council in executive session. He hoped to have a favorable report for the citizens and the Council early next week. AGENDA ITEM#10. CONSIDERATION OF AMENDMENTS TO THE LEASE FOR TOWN HALL. STAFF WILL REVIEW THE DISCUSSIONS BETWEEN COUNCILMEMBER WYMAN AND THE LANDLORD AND MAKE A RECOMMENDATION THAT COUNCIL AGREE TO THE FINANCIAL TERMS AND GIVE STAFF DIRECTION REGARDING INSURANCE AND INDEMNIFICATION TERMS AND THAT THE MAYOR BE AUTHORIZED TO EXECUTE A LEASE AGREEMENT WHEN THE INSURANCE AND INDEMNIFICATION TERMS HAVE BEEN SATISFIED. Acting Town Manager Bill Farrell thanked Councilman Wyman for his assistance. Mr. Farrell explained that MCO had occupied this complex under a master lease with Dr. Lukenda. The lease was a triple net lease with MCO responsible for all costs associated with operating the building and rent payments with an escalator clause. That was in existence for 20 years. He noted that after incorporation and over a period of time the Town had started to rent pieces of the buildings to complete the complex. The Town had inherited a building that needed to have substantial repairs. Under the old lease agreement those repairs would have been the responsibility of MCO Properties. As the Town was the new tenant, the Town wasn't willing to perform those repairs without credit or without substantial changes to the manner in which the lease was structured. He wanted some flexibility built in to allow for a Town Hall to be built near the Community Center and the New Library, if it became financially possible. Mr. Farrell stated that a tentative agreement had been reached with Dr. Lukenda. Almost a year ago, the Council authorized the execution of the lease. However Dr. Lukenda was unwilling to sign that lease under the terms and conditions that the Town had presented to him. It had been a friendly impasse, with the Town paying the rent each month. When Town Manager Nordin became ill, one of the issues that Mr. Farrell had pledged to the Council was that he would clean up and place on the front burner was the Town Hall lease. It became immediately apparent to him that it Town Council Meeting Minutes 11/15/01 Page 2 of 10 was not going to be something that he would be able to get done by himself. He then asked Councilman Wyman. who had been involved extensively in the earlier negotiations, if he would come back in and play a role in the negotiations. Councilman Wyman agreed to do that with the consent of the Council. Councilman Wyman visited with Dr. Lukenda for over a two-day period and returned to Fountain Hills with the fundamental deal points of the lease agreement that was before the Council. He and Councilman Wyman were recommending that the Council authorize the Mayor to enter into a master lease agreement, the terms and conditions of that had not been fully settled, however the material terms of the lease had been settled. He pointed out that one of the major concessions that had been obtained was a reduction in per square foot lease rate for the property from the previously agreed to $8.50 to$8.20 per square foot. That .30 square foot reduction would continue during the five years of the lease term that giving the Town some recovery for the repairs that had already been made to the building. Another significant issue that had been agreed to was a cap on future repairs. When anything goes wrong with the heating, air conditioning, plumbing, electrical, or roof of the building, the tenant (Town) would be obligated for the first $2,500 and every dime over that $2,500 was the responsibility of the landlord and would be deducted from the next rent payments as they became due and payable. Dr. Lukenda had never had to pick up those particular repair costs before and this was a major concession on the Doctor's part. The third portion was a pretermination agreement, whereby if at anytime the Town was to have other facilities available, and the Town wished to move, the lease could be terminated on twelve months notice. The Town would not pay any penalty or have to give additional notice and no questions would be asked. He stated that one of the things that staff planned to present to the Council for consideration in the budget cycle for the next fiscal year was the possibility of building a Town Hall on land already owned by the Town. It was the preliminary feeling that the Town could probably build a Town Hall and lease it back to the Town for exactly the same amount of money now being paid for rent. At the end of twenty years the Town would have effected a substantial savings and have a piece of property that was owned. One of the issues then would be the use of this property. He concluded that in the spring staff would get into more detail with the Council. With this pretermination agreement in place, the Town would not have to wait until the third or fourth year of the lease. He said there still remained to be a meeting of minds and language provided regarding the way in which insurance was to be provided. He acknowledged that the Town's carrier was a municipal pool. As such they did not wish to give endorsements to private or third parties. He confirmed that the Town did not differ with the Doctor on the amount of insurance, only as to the method in which it would be provided. Mr. Farrell stated that he was requesting that the Council authorize the Mayor to execute the master lease agreement when the insurance provisions were finalized. In the meantime, he asked that they allow him to notify Dr. Lukenda that the Council had agreed with the financial provisions of the lease and that the Town would resume the correct amount of payments and receive the credits that they were due. Councilman McNeill MOVED to approve the Mayor executing the master lease agreement when the insurance provisions were finalized as presented and Councilwoman Ralphe SECONDED the motion. Councilwoman Fraverd questioned if the$2,500 was to be paid per item or per month. Mr. Farrell clarified that amount would be paid per occurrence. Councilwoman Ralph thanked Councilman Wyman for his assistance with the lease negotiations, which resulted in a $.30 per square foot rent reduction that would last through the entire five year term of the lease. Councilman McNeill, Mayor Morgan, Councilwoman Hutcheson, and Councilman Kavanagh also thanked Councilman Wyman for his efforts. The motion CARRIED unanimously. AGENDA ITEM#11. PRESENTATION BY COX COMMUNICATION REPRESENTATIVES REGARDING COX'S ACCELERATED UPGRADE OF SERVICE IN FOUNTAIN HILLS. Susan Anable, Manager for Government Relations, Kevin Moran, Director of Government Relations, and Percy Kirk, Vice President of Network Operations (also in charge of making the system upgrades in Fountain Hills), made a power point presentation, which covered the proposed accelerated upgrade and expansion plans for service that would be offered to the residents. Ms. Anable covered the enhanced services that would be offered, such as digital video and high-speed data. She discussed the physical aspects of what the upgrades would entail for the community, how the physical upgrades would affect the citizens, and an overview of the services that would become available to citizens who were Cox subscribers. She acknowledged that Cox Communication was facing increased competition from the direct broadcast satellite. Ms. Anabel felt that the Council should also be concerned because Cox Communication's Town Council Meeting Minutes 11/15/01 Page 3 of 10 cable license agreement with the Town of Fountain Hills provides for license fees to be paid to the town on a percentage basis of what they generate in terms of cable revenues. DBS did not make a similar contribution in license fees to the Town. Loss of customers would cost the Town money as well. Cox Communication looked forward to the accelerated upgrade as a way to meet the competition, as well as a way to keep and add to their customer base, which would benefit both Cox and the Town. Percy Kirk discussed what the upgrade would mean to the citizens and how it would be accomplished. He stated that each customer would have a digital converter that would allow them to receive digital services and electronic program guides. At the conclusion of the upgrade and deployment of the converters, Cox would be ready to offer the enhanced services throughout the community. He stated that Cox was aware that the Town had done a lot of work to reseal streets. He assured the Council that in those cases where they would need to enter into those streets, Cox would reseal the streets when they were finished. Councilman Wyman asked if Cox hadn't already replaced much underground cable in previous years in conjunction with the Water Department's street work. Mr. Kirk agreed much had been done but explained that when they go through the process of testing cable, they would find some cable that would need to be replaced. There would also be minor places where they would need to add on. Councilwoman Hutcheson questioned if there was ever any attempt by Cox to try to coordinate some of this work with the street work completed by the Town. Mr. Kirk agreed it may not seem like it,but Cox really did try to coordinate the work because it was to their advantage. He confirmed that they would return the streets to their original condition. Mr. Farrell noted that there were some areas of the downtown that did not have cable access. He suggested that as long as Cox was out here and in the streets, perhaps some extensions would be made to those businesses that previously hadn't been able to access cable because of the cost. Mr. Kirk said Cox hoped that they would be able to look for opportunities where they could deploy cable in those areas. Vice Mayor Kavanagh asked how the new cable boxes would differ. Mr. Kirk described the new services that would be available with the new cable box. Councilman McNeill asked what the timetable would be for availability to the residents. Mr. Kirk replied that some customers could probably see it as soon as the beginning of February and potentially through June. Mayor Morgan questioned how many calls the Council could expect to receive because of service interruptions due to the tentative upgrading process. Mr. Kirk responded that what they try to do is bring the service down in the morning. When people arrived home in the evening, service would be back on. Councilwoman Ralphe asked what type of increase these new services would generate. Ms. Anabel confirmed that there would be a price increase for the Cox Classic service with the deployment of the digital line-up. That increase would include two free digital converters with the additional expanded services. The price would become $37.95 for the Cox Classic up from$32.95. Vice Mayor Kavanagh asked what the charge for additional converters would be. Ms. Anabel stated it would be and additional $3.50 per box. Vice Mayor Kavanagh asked if the cable would service 100% of the homes in Fountain Hills. Ms. Anabel said if the resident had cable today, that resident would have the new services being described. Mayor Morgan questioned their density policy and asked if it was realistic to make a resident wait two, three, or four years for service. Mr. Kirk assured the council that if Cox could make sense of the costs involved that Cox would prefer to complete the work upfront and have service on when those new people move in. He admitted there would be times when providing service would not financially make sense to Cox. Ms. Anabel stated that she would check into the licensing agreement with the Town, as typically there was some flexibility in Cox's ability to provide services when density level was not met. Certain arrangements with the homeowners in terms of the cost sharing to provide that service might be an option. Mr. Farrell inquired if the Arizona Senate hearings would be made available to the residents on our Channel 11. Mr. Kirk replied that he had not specifically heard that would be done, but the upgrade would make it possible. Mr. Farrell asked if the local government channel and the education channel would continue with as much local control as technically available. He also wanted to know if the upgrade would allow for Cox to offer telephone service. Percy Kirk said the technology would be in place that would allow them to do other things in the future. Town Council Meeting Minutes 11/15/01 Page 4 of 10 William W. Williams He asked if the new technology would decrease outages. He felt a lot of unnecessary time was spent trying to get credit for outages. He wanted to know why a person had to apply for a credit for an outage when the company caused it. Ms. Anabel responded that they were concerned about the effect of any price or rate modification for customers. They felt strongly that the package put together with respect to the upgrade and service provided certainly merited the adjustment. There was an opportunity for customers to choose a lesser package but it would not have the digital component. With regard to outages, one of the key benefits of the upgrade was that with the improvements to the system it was believed that there would be fewer outages. She volunteered to talk further with Mr. Williams to try to assist him. She explained not all outages affected every customer. It was not easy to determine which group of customers was affected for which period of time. Vice Mayor Kavanagh pointed out that many residents did not know that they had the option to request a credit for that period of time. He reminded residents to call Cox and give them their name and address and Cox would deduct one day's worth of cable rates from the individual's bill. Mayor Morgan said you must be persistent in placing the calls because often the line is busy. Ms. Anabel agreed customer service one of their challenges with all of these new services and they were working on improving it. Bob Scarpel,Glenpoint Dr. He said he had a cable ready TV. He didn't need a box if it was cable ready and did view premium channels. He wanted to know if he had to rent a box for the new digital system. Ms. Anabel said if the residents wanted to receive the digitized channels above channel 22, a converter would be necessary. That was why they were offering the first two boxes free. Vice Mayor Kavanagh asked if it was permissible to purchase a box on the private market as long as it met Cox's specifications. Mr. Kirk said that option was a couple of years out but Cox would essentially still be able to control the converter box. Councilwoman Hutcheson asked what the amount was that the Town received from Cox for license fees. Mr. Farrell said that it was approximately 5% of the gross sales. Ms. Ghetti responded that amount was about $130,000. Mr. Lie Farrell acknowledged that Cox did contribute to the Town monetarily. AGENDA ITEM#12. CONSIDERATION OF RESOLUTION 2001-50,DECLARING AS A PUBLIC RECORD THAT CERTAIN DOCUMENTS FILED WITH THE TOWN CLERK AND ENTITLED "THE 2001 AMENDMENTS TO THE TAX CODE OF THE TOWN OF FOUNTAIN HILLS." Mr. Farrell explained that each year representatives from the cities and towns and business community under the auspices of the legislature met in a group called the "Model Cities Tax Code Commission" and approved changes to the Model Cities Tax Code. Each city and town in the state then adopts a sales tax pledge that they will adopt the same wording and the same terms and conditions of imposing that tax so that those who did business in more than one city or town would be able to file those reports and be able to pay the appropriate taxes. The legislature stated that no changes could be made to the Model Cities Tax Code unless approved by the commission. Once approved by the commission there was the obligation for each city and town to adopt them and put them in place by the first of the year. He noted that this resolution to adopt this document as a public record would save the Town the cost of publication. He noted that the changes this year were technical changes to the written code but did not change the amount of sales tax that a person would pay within the Town of Fountain Hills or the amount that the Town would receive. Councilwoman Fraverd MOVED to approve Resolution 2001-50 as presented and Councilwoman Hutcheson SECONDED the motion. Councilwoman Ralphe questioned an item on page 11. She asked if sales tax would be collected on vehicles that were converted to operate on alternative fuel. She was looking for some reassurance that the Town was not jumping into the state's recent dilemma with sales of these types of vehicles. Mr. Farrell said that this item had to do with retail sales of motor vehicles that used alternative fuel. He did not believe that the Town had any auto dealers of any great significance in terms of dollar volume in the community that would be involved. The town would not engage in subsidizing anyone's wild schemes. The motion CARRIED unanimously. Town Council Meeting Minutes 11/15/01 Page 5 of 10 AGENDA ITEM#13. PUBLIC HEARING ON ORDINANCE 01-21 RELATING TO THE PRIVILEGE LICENSE TAX; ADOPTING "THE 2001 AMENDMENTS TO THE TAX CODE OF THE TOWN OF FOUNTAIN HILLS" BY REFERENCE; ESTABLISHING AN EFFECTIVE DATE; PROVIDING FOR SEVERABILITY AND PROVIDING PENALTIES FOR VIOLATIONS. ikop" Mayor Morgan recessed the regular session and opened the public hearing at 7:35 p.m. Mr. Farrell confirmed that in the previous Council action they had adopted as a public record the amendments to the Model Cities Tax Code. The ordinance then would place those amendments into the Town's tax code and would become effective December 31, 2001. Mayor Morgan closed the public hearing the 7:36 p.m. AGENDA ITEM#14. CONSIDERATION OF ORDINANCE 01-21 RELATING TO THE PRIVILEGE LICENSE TAX; ADOPTING "THE 2001 AMENDMENTS TO THE TAX CODE OF THE TOWN OF FOUNTAIN HILLS" BY REFERENCE; ESTABLISHING AN EFFECTIVE DATE; PROVIDING FOR SEVERABILITY AND PROVIDING PENALTIES FOR VIOLATIONS. Councilman Wyman MOVED to approve Ordinance 01-21 as presented and Councilwoman Hutcheson SECONDED the motion, which CARRIED unanimously. AGENDA ITEM#15. CONSIDERATION OF THE PRELIMINARY PLAT FOR EAGLE MOUNTAIN, PARCEL 10/11, TRACT G, LOCATED IN THE EAGLE MOUNTAIN SUBDIVISION SOUTH OF SHEA BOULEVARD, CASE NUMBER S2001-27. THIS ITEM WAS CONTINUED FROM THE NOVEMBER 1 COUNCIL MEETING. Director Valder stated that the Council had requested that staff speak to members of the Eagle Mountain Property Owners Association. He confirmed that the property had been renoticed. He acknowledged that additional information had been received from the applicant. It was his understanding that the applicant and members of the Eagle Mountain Property Owners Association were present to answer questions. He said that prior to this meeting he had a short conversation with Councilman McNeill. They had discussed the possibility that Eagle Mountain Community NNW Association might have an interest in this piece of land. On the application, the applicant stated that Eagle Mountain Investors, LLC (property owner) that the managing member of that limited liability corporation, Mr. Voight, was the president of the Eagle Mountain Community Association. Director Valder suggested that an additional stipulation be added, "prior to final plat approval by the Town Council, the applicant was required to provide to the Town a title report. The report should show that Eagle Mountain Investors LLC was the property owner and that there was either permission from the Eagle Mountain Community Association to split this property into two lots or that the permission was not required. Director Valder said that the plat that was received this week showed Mr. Voight as the president of that association and Director Valder was not sure that was correct. He understood that the association had been turned over to the residents. He said the title report would flush that issue out. Councilman Wyman MOVED to approve the Preliminary Plat as presented and Vice Mayor Kavanagh SECONDED the motion. Councilman McNeill asked to hear from the applicant. The last time that this issue was before the Council it had been just the plat drawing itself and it showed the proposed two new lots and a number of existing lots. He said from that information it had been impossible for him to tell whether the adjacent existing lots had been sold, occupied, or what exactly the status was. He had been concerned that if the lots had been sold, were those homeowners aware of the intent to create the new lots on the hillside. He referenced item#13 in the staff report. He thought this was from the original of Plat 10/11 Tract G. Councilman McNeill said that the plat stated that Tract G was to be conveyed as a common area to the Community Association. He felt that implied that the area was to be an open area. While it was understood that this had been properly noticed to the public, he was not sure that any of the lot owners that now view this hillside from their backyards would have any reason to go up on the hill where the two lots would be created to see those hearing notices. Town Council Meeting Minutes 11/15/01 Page 6 of 10 Councilman McNeill stated he was interested in whether the applicant had provided any individual notice to any of these landowners and, if not, he would prefer to see this item not acted upon until he knew that those homeowners had been individually notified. 1/4116, Mark Voight,President of Communities Southwest He stated that they were the managing partner of the Eagle Mountain Investors, LLC. He confirmed that they did own this property. It was titled to them and not the homeowners association. He introduced Artie Hower, their in-house engineer. He distributed a copy of the original master plan map that had been adopted for Eagle Mountain. He explained that he had circled the area of Parcel 10/11 that was platted on approximately October of 1997. At that time 10/11 was zoned and still is R1-6. Improvement plans had been submitted to the Town at that time that showed that this area had been reserved as future custom lots. He stated that the reason that they had not platted those lots at that time was that these were smaller lots that were sold to Greystone Homes. This piece of land had been withheld as a Tract and they had maintained ownership. They had clearly identified it in all zoning documents. He explained that because of the terrain they were taking it to two lots instead of the four as previously noted. He reiterated that they owned the property, they had followed the Town's rules, they had shown the zoning map to everyone that bought property, and they felt it had been fully disclosed. He pointed out that there had been several public hearings on this issue. He said that they were in agreement with staffs stipulations and encouraged the Council to approve the plat. Councilman McNeill expressed confusion. The staff report said that Note#6, referring to the original plat, that Tract G was to be conveyed as common area to the Community Association and Mr. Voight was telling the Council that apparently that was not the case. Mr. Voight said that never happened. He stated that they had always intended it to be custom lots. He did not know when that statement was put on the plat as all the improvement plans showed it as future custom homes. Mr. Voight said that a deed had not been given to the HOA. Councilman McNeill asked if the original plat had been approved with this statement. Would a buyer of those lots that was looking up into that area have some reason to rely upon that language? He was not suggesting that the Council deny the application, but he was concerned that with this type of language in the original plat that the affected owners should be given individual notices. Mr. Voight said it was his understanding that this had been posted several times. He restated their position. They had followed the rules and regulations, they owned the property, and they were subdividing it. Councilman McNeill made the point that the original plat said that they weren't supposed to own it as it was to be conveyed to the Community Association. Mr. Voight responded that when there was extra land like this it was not unusual to have it in a Tract. He pointed out that they were the declarent and owned all of the common space. It was not unusual to hold a tract and later subdivide it because it was part of that legal parcel. Vice Mayor Kavanagh asked who wrote Note #6 on the plat. Mr. Voight said it would be their engineer at the time because they would have to show where that tract would go at that particular time. Vice Mayor Kavanagh asked if their engineer made a mistake and thought it was to be conveyed but it never was. Mr. Hower responded that he felt the note was made for the purposes of maintenance. Mr. Voight agreed with Mr. Hower's explanation, as the Town would want to know who was maintaining it. He noted that they had always intended to build custom homes. Director Valder said he had always understood that that parcel would be left open for future custom lots. When Parcels 10/11 were platted the road that led to it wasn't in existence. There wasn't any way to access it once Parcel 10/11 was constructed. It was a remainder piece that would be accessed once the subdivision to the south was built. He did not recall Note#6 on the Plat 10/11. He did not believe it was something that staff had stipulated. Councilwoman Fraverd asked if there was a homeowners association that was an ongoing concern in Eagle Mountain or was Mr. Voight the homeowners association. Mr. Voight said that there was an independent homeowners association. Councilwoman Fraverd asked if was possible to bring it to their attention and have them make a recommendation as to what they would like to do or had the applicant already done that. Mr. Voight said they had not discussed this particular item with the homeowners association. Councilwoman Fraverd felt there was some confusion over whether this should be open space or custom home lots. She expressed that she would like to know what the residents in Eagle Mountain would prefer. Mr. Voight said he appreciated her request but it had always been shown as custom lots and they had always intended to develop it as such. They had always advertised that piece of land as custom lots and they did own the property. He said that he would be happy to discuss it with the HOA but the Association did not own that property. L,,, Mayor Morgan commented that if Director Valder had never known it to be anything other than future custom lots, she did not know why it would have to go to the homeowners. Vice Mayor Kavanagh suggested that since Mr. Voight has Town Council Meeting Minutes 11/15/01 Page 7 of 10 said he would discuss it with the homeowners, why not let Mr. Voight do that. He could then come back to the next Council meeting. Mr. Voight reiterated that it was his property. It had always been advertised as custom lots. They had followed the rules. He would happy to discuss this with the homeowners but he said he could guarantee that their recommendation would be for more open space. He said this item had already been continued. These were the last two custom lots in a very fine development. Councilwoman Hutcheson said the point was that this property had always been zoned R1-6A. It was responsible to expect that there would be development on it. If this was looked at as a rezone case, then this might be different. She did not see how the Council could not allow him to put two houses on that property when the zoning upheld it. She asked if the Planning and Zoning Commission had any problems with this as they had voted 4 — 1 on this. Director Valder said no,not that he could recall. Vice Mayor Kavanagh asked if this particular issue regarding Note 6 had come up. Director Valder responded no. Vice Mayor Kavanagh said that ultimately the ball always stops with the Town Attorney. Mr. Farrell said that he and Director Valder had been discussing the issue. He stated that they did not have the original plat before them this evening. Both of them were comfortable that there wasn't an act of dedication. He said that there wasn't a question that there was a note that was causing some confusion. He explained that in order to convey property to the Town and have the Town accept it, there must be a dedication on the plat map. He acknowledged that there wasn't any dedication of that tract on the original plat to any association. He did not think that anyone would have the strength of a quiet title action against Mr. Voight for the property. Mr. Farrell said Mr. Voight's point was well taken that the response by the homeowners would be for open space but there wouldn't be the clamor that a right had been taken away from them that they had been entitled to. Given the large size of the lots in R1-6A zoning and the quality that had gone on in that development, Mr. Farrell asked that the Council give Mr. Voight their approval to go forward. Mr. Farrell thought that Town Engineer Randy Harrel had made the note. Director Valder confirmed that Mr. Harrel had suggested the stipulation. Mr. Farrell did not feel a case could be made to take that the property from Mr. Voight. Councilman Wyman asked what stipulation#13 was even doing on the staff report. He asked why the applicant would agree to staffs stipulations as mentioned only a few minutes ago as he did not think that they would want to do that. Councilwoman Ralphe asked if the Council were to approve this request, was the Town accountable for the accuracy of any other preliminary plats. Mr. Farrell said he did not think there was a question of the accuracy of the earlier plat or of this plat in terms of their interpretation. He explained that the dedication language would control it. If Tract G were dedicated to the Town as part of the final plat of parcel 10/11, then the Town would pick up that particular tract for the purposes of open space and drainage. The Town would never issue a building permit for that particular tract. He did not think there was any concern on the accuracy of the lots legal descriptions. Councilwoman Ralphe stated that the Council was looking at the preliminary plat and the final plat did not give an indication that this parcel was open space. Mr. Farrell agreed. Councilman McNeill questioned the applicant's itemized response to the staff report. The response to item#13 did not help him understand the situation. It states that the ratification by the community association has been changed to acknowledge previous dedication to the association and proposed uses and responsibilities as shown. He asked for clarification. Mr. Hower answered that the community association had to ratify the plat. The new tracts that had been created would have to be ratified for the configurations just as they were on the original plat. William W.Williams He agreed that the issue should go to the homeowners and find out if they bought their property thinking that this piece of land was dedicated as open space. John Nelson,Eagle Mountain resident He was confused. He asked that if this was approved in the original plat, had the original plat been changed. Director Valder said technically the applicant was proposing to change Tract G into two lots that could be sold. Single .„ family homes could be constructed on each of those lots,creating a couple of other open space tracts. Town Council Meeting Minutes 11/15/01 Page 8 of 10 Councilman McNeill said that given the fact that the original plat contained this Note #6 stating that Tract G was to be conveyed as common area to the community association, he MOVED to continue this item until such time as the applicant had given written notification by mail to all homeowners within 500 feet of the affected property and Councilwoman Fraverd SECONDED the motion. Mr. Farrell asked what the affect of the notice would be. He asked for clarification for the applicant. He suggested that the Council consider Director Valder's earlier suggestion that the applicant must provide a preliminary title report on Parcel G that would show ownership of the parcel and any liens or encumbrances of record. He said that he was more than happy to facilitate discussion and notice to the community but he was not sure what the public's right was or if the Town wanted to create a right in the community association that they didn't necessarily have. Councilman McNeill explained he wanted nothing more than that the notice contain the same information that would normally be posted. He asked that the information be conveyed to nearby owners by written letter to each. Mr. Farrell asked if Mr. Voight would agree to one more continuance and the notice would be sent to the property owners. Mayor Morgan asked if the Council had to vote on the continuance. Mr. Farrell asked that a date certain be included. Mr. Farrell suggested that in order to keep the Council meeting of December 20th short that this be placed on the December 4th agenda. He said that the Council would receive a copy of the first plat and the existing plat and staff would assist with notice process. A roll call vote was taken with the following results. Councilwoman Ralphe— aye Councilman Wyman - nay Councilman McNeill - aye Councilwoman Hutcheson - aye Councilwoman Fraverd- aye Vice Mayor Kavanagh- nay Mayor Morgan - nay The motion to continue this item to the December 4th Council meeting CARRIED on a vote of 4—3. AGENDA ITEM#16. CALL TO THE PUBLIC. No one came forward. AGENDA ITEM#17. ADJOURNMENT. Councilwoman Hutcheson MOVED to adjourn and Councilwoman Fraverd SECONDED the motion, which CARRIED unanimously. Mayor Morgan adjourned the meeting at 8:15 p.m. L Town Council Meeting Minutes 11/15/01 Page 9 of 10 TOWN OF FOUNTAIN HILLS L Sharon Morgan,Maygt ATTEST: ( iK./5 )4-L4-AA-I-- Cassie B. Hansen, Director of Administration/Town Clerk PREPARED BY: tiC: r� / 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 15th day of November 2001. I further certify that the meeting was duly called and that a quorum was present. DATED this 4th day of December 2001. Cassie B. Hansen, Director of Administration/Town Clerk Town Council Meeting Minutes 11/15/01 Page 10 of 10