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HomeMy WebLinkAbout2002.1121.TCREM.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF THE REGULAR AND EXECUTIVE SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL November 21,2002 Mayor Beydler called the meeting to order at 5:00 p.m. AGENDA ITEM #1 - PURSUANT TO A.R.S. §38-431.03.A.4. AND A.R.S. §38-431.03.A.1, 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 REGARDING CONTRACTS THAT ARE THE SUBJECT OF NEGOTIATIONS, IN PENDING OR CONTEMPLATED LITIGATION OR IN SETTLEMENT DISCUSSIONS CONDUCTED IN ORDER TO AVOID OR RESOLVE LITIGATION, SPECIFICALLY SETTLEMENT IN THE HOFFMAN/ROBINSON VS. TOWN, ET AL LITIGATION AND BROWN AND BAIN VS. TOWN; AND DISCUSSION OR CONSIDERATION OF EMPLOYMENT, ASSIGNMENT, APPOINTMENT, PROMOTION, DEMOTION, DISMISSAL, SALARIES, DISCIPLINING OR RESIGNATION OF A PUBLIC OFFICER, APPOINTEE OR EMPLOYEE OF ANY PUBLIC BODY, EXCEPT THAT WITH THE EXCEPTION OF SALARY DISCUSSIONS, AN OFFICER, APPOINTEE OR EMPLOYEE MAY DEMAND THAT SUCH DISCUSSION OR CONSIDERATION OCCUR AT A PUBLIC MEETING. THE PUBLIC BODY MUST PROVIDE THE OFFICER, APPOINTEE OR EMPLOYEE WITH SUCH PERSONAL NOTICE OF THE EXECUTIVE SESSION AS IS APPROPRIATE BUT NOT LESS THAN 24 HOURS FOR THE OFFICER, APPOINTEE OR EMPLOYEE TO DETERMINE WHETHER SUCH DISCUSSION OR CONSIDERATION SHOULD OCCUR AT A PUBLIC MEETING. (THE COUNCIL WILL CONDUCT AN EVALUATION OF THE MANAGER'S EMPLOYMENT.). Councilwoman Ralphe MOVED to convene the executive session. Councilwoman Nicola SECONDED the motion. The motion CARRIED unanimously. GENDA ITEM#2-RETURN TO REGULAR SESSION NIIIMayor Beydler recessed the executive session at 6:25 p.m. Following the 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 Jon Beydler, Vice Mayor Leesa Fraverd, and Councilmembers Rick Melendez, Susan Ralphe, Kathleen Nicola, Michael Archambault. John Kavanagh came in late. Town Attorney Andrew McGuire, Town Manager Tim Pickering, and Director of Administration Town Clerk Cassie B. Hansen were also present. AGENDA ITEM#1 - CONSIDERATION OF APPROVING THE MEETING MINUTES OF OCTOBER 29 AND NOVEMBER 7,2002. AGENDA ITEM#2- CONSIDERATION OF A LIQUOR LICENSE APPLICATION FOR DEJA VU TERRACE CAFE TO BE LOCATED AT 14815 EAST SHEA BOULEVARD. THE APPLICATION IS FOR A TRANSFER OF A CLASS#7 BEER AND WINE LICENSE. AGENDA ITEM #3 - CONSIDERATION OF THE SPECIAL EVENT LIQUOR LICENSE APPLICATIONS SUBMITTED BY KENNETH BOWMAN FOR THE AMERICAN LEGION POST 58 LOCATED AT 16837 EAST PARKVIEW AVENUE. THE LICENSES WILL BE USED FOR FUND RAISING EVENTS SCHEDULED FOR SATURDAY, DECEMBER 7, 2002 AND SATURDAY, DECEMBER 14, 2002 FROM 9:00 A.M.TO 10:00 P.M.AND TUESDAY,DECEMBER 31,2002 FROM 9:00 A.M. TO 1:00 A.M. AGENDA ITEM #4 - CONSIDERATION OF THE SPECIAL EVENT LIQUOR LICENSE APPLICATION SUBMITTED BY ALAN CRUIKSHANK FOR THE FOUNTAIN HILLS AND LOWER VERDE RIVER ALLEY HISTORICAL SOCIETY/RIVER OF TIME MUSEUM LOCATED AT 12901 NORTH LA "oklupdONTANA DRIVE. THE LICENSE WILL BE USED FOR A DONOR RECEPTION AND FUND RAISING EVENT SCHEDULED FOR SUNDAY,NOVEMBER 24,2002 FROM 5:00 P.M.TO 7:30 P.M. E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 1 of 22 AGENDA ITEM #5 - CONSIDERATION OF THE FINAL PLAT FOR "REPLAT OF FINAL PLAT THE LA MONTANA CROSSING CONDOMINIUMS", A 15-UNIT CONDOMINIUM PROJECT, LOCATED AT 16726 E. LA MONTANA DR.; AKA. LA MONTANA CROSSINGS CONDOMINIUMS, CASE L #S2002-48. AGENDA ITEM#6- CONSIDERATION OF A PRELIMINARY AND FINAL PLAT FOR THE 45-UNIT FIESTA CASITA CONDOMINIUMS, LOCATED AT 16354 PALISADES BOULEVARD, AKA PLAT 103,BLOCK 1, LOT 16, CASE NUMBER S2002-47. Councilman Kavanagh MOVED to approve the consent agenda (items 1-6) and Councilman Archambault SECONDED the motion. A roll call vote was taken with the following results: Mayor Beydler Aye Councilman Kavanagh Aye Councilwoman Nicola Aye Councilman Archambault Aye Vice Mayor Fraverd Aye - Councilwoman Ralphe Aye Councilman Melendez Aye The motion CARRIED unanimously. AGENDA ITEM #7 - PRESENTATION OF CERTIFICATES OF APPRECIATION TO NINE ORGANIZATIONS AND BUSINESSES THAT HAVE BEEN ACTIVELY AND CONTINUOUSLY PARTICIPATING IN THE TOWN OF FOUNTAIN HILLS ADOPT-A-STREET PROGRAM SINCE 1997: COLDWELL BANKER DESERT SUNRISE, CUB SCOUTS WEBELOS PACK#243, AQUATICS UNLIMITED SWIM SCHOOL,MIKE'S TIRE AND AUTO,BERCEL BUILDERS, FOUR PEAKS ROTARY CLUB,SUNSET KIWANIS,CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS,AND STEPHENS REALTY. Mayor Beydler presented Certificates of Appreciation to those businesses that had participated in the Adopt-a-Street Program for five years. LIGENDA ITEM#8- CONSIDERATION OF A U.S.DEPARTMENT OF JUSTICE GRANT FOR ADDITIONAL OFFICERS FOR THE TOWN OF FOUNTAIN HILLS. Councilwoman Ralphe MOVED to accept the grant and Councilman Archambault SECONDED the motion. Mr. Pickering stated that Marshal Tate would be making a presentation on this issue. Interim Town Marshal Todd Tate reviewed his staff report. He explained this grant would provide $375,000 for five new officers, which would provide 75% of the funding of the officers' salaries and benefits of $75,000 per officer over the three-year grant period. The Town's funding portion over the three-year period would be approximately $380,000. He noted that the Town must notify the Department of Justice as to whether or not the grant would be accepted by December 5. He explained that the department had identified some needs where additional resources could be used: ordinance, property crime, and speed enforcement. He identified where the department was meeting needs: response time, drug activity, and crime prevention efforts. Marshal Tate listed the grant's top five local public safety concerns as being property crimes, violent crimes against persons, drug crimes, domestic violence, and motor vehicle theft. He noted that ordinance enforcement had been ranked 6`h. Marshal Tate confirmed that an alternative funding source would be necessary for staff to recommend approval of this grant. Staff was requesting a motion by the Town Council to either accept or deny the grant. Councilman Archambault said the grant could not be implemented in this budget year. He asked if the grant could be implemented next year as the funds became available. Marshal Tate responded that he had talked with the Town's regional representative from the Department of Justice. He noted the Department of Justice recognized that if a Town had financial difficulties or hiring freezes in place, and they did approve such a grant, it could be cancelled or altered at a later date. Councilman Archambault asked if he had talked with Carlie Smith from the Department of Justice. Marshal Tate replied yes. Councilman Archambault acknowledged that he had also talked with her and Ms. Smith had indicated that if the Town needed a grant extension, the Town could apply for it. He pointed out that he had asked Ms. Smith to send the ppropriate paperwork to Marshal Tate's attention in case that scenario came about. Councilman Archambault stated that would not cost the Town anything now to accept the grant. The grant would only cost the Town money once the grant was implemented. Councilman Archambault moved to AMEND the motion to accept the grant and utilize the grant when the funds became available. Councilman Archambault understood from his conversation with Ms. Smith that if the Town E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 2 of 22 initiated the grant for one officer next year, then the three years for that officer started then. If the Town acquired an extension and the following year the Town initiated three more officers, the three years for those officers would start when they were hired. Marshal Tate confirmed that was also his understanding. Mayor Beydler asked for clarification as what Councilman Archambault meant when talking about "when the funds became available". Was Councilman Lto Archambault talking about the matching funds? Councilman Archambault agreed he was. Councilwoman Ralphe SECONDED the amendment. Vice Mayor Fraverd noted that with the amendment the Town would be enlarging the Marshals Department. She asked Mr. Pickering if the Town was currently looking at expanding the Marshals Department next year. Mr. Pickering responded that he had not gotten into next year's budget. He reminded the Council that he had been requested to prepare a report for the council to reduce the Town's current costs and obviously this would increase the Town's current costs for the next year. Regarding the suggestion of delaying the grant until the Town had funds, Mr. Pickering proposed that the Council try to determine where that funding would come from to ensure that the Town had that revenue before the hiring process began to expand the department. Mayor Beydler pointed out that Mr. Pickering could reallocate funds, as opposed to simply increasing one budget, if so directed. Mr. Pickering confirmed a change in the budget could be made with Council direction. Within a department, Mr. Pickering said he would have the authority to reallocate funds. He could not reallocate funds from one department to another as he felt that would take action by the Council. He thought he would have to research that action. Councilman Archambault asked when the first letter was received with regard to this grant. Marshal Tate replied in May. He had brought the application to the Acting Town Manager Roy Pedersen. He thought it had been in June or July that the Town heard from the federal government that the application had been approved. Councilman Kavanagh asked if Acting Manager Pederson had approved the submission of this grant. Marshal Tate responded yes. Mr. Pedersen had full knowledge of the grant and was awaiting the paperwork for his signature. Councilman Kavanagh found that disturbing because that was in direct opposition to the previous Council's policy at that time. He noted that the Council had not been consulted about the grant. He felt the public should understand that the previous Council had not authorized this action. Councilman Kavanagh asked if, after reviewing the budget, if both Marshal Tate and Mr. Pickering stood by their recommendation that the Council should turn this grant down. Marshal Tate acknowledged that because of the Town's urrent financial position, the Town needed an alternative funding mechanism or funding source to pay for the salaries rnd benefits of these officers. Councilman Kavanagh referred to Marshal Tate's staff report that mentioned another reason why this grant might not be a wise thing to do, which was supplanting. Councilman Kavanagh said the grant basically stated that the grant could not be used to replace police officers that were currently being paid by state or local monies. He asked if that was part of Marshal Tate's plan. Councilman Archambault replied it was not. Councilman Kavanagh asked if what was being proposed was that the Town keep the same number of sheriff deputies and increase the Marshal Department by five. Mayor Beydler reminded the Council they were required to address their comments to the chair and not to each other. Councilman Archambault responded by quoting from the Town Code, Article 4, which referenced the town manager's authority. He said that clearly gave the town manager the authority to sign grant applications. He stated the town manager would have done so with the Council's direction. He pointed out that at that time there had been budget concerns and staff had been looking at ways to acquire additional funding. He agreed that it would take Council action to accept a grant. Councilman Archambault commented that last week he had misspoken because he had not done enough research. What he had said at that time was that this grant could be used to replace a beat from the Sheriff's Department. He recognized that the Town had a contract with the Sheriff's Department through the end of this year and to utilize the grant in this way would be supplanting. He said his statement had been false and he apologized. Councilman Archambault proposed that this grant would give the Town the flexibility to hire new officers when the funds became available. He stated that Carlie Smith was Fountain Hills' representative. During his conversation with Ms. Smith, she had asked who was the "agency of record". He noted that the "agency of record" was the one who was applying for the grant. He confirmed that the "agency of record" on this grant was the Fountain Hills Marshals Department. Ms. Smith explained that the Town could make an application for a "diminished force" because of the loss of marshal deputies through attrition from the beginning of the budget year to now. Then the Town could move forward from that number. Councilman Archambault said this resulted in his request that Ms. Smith send Marshal Tate that application. councilman Kavanagh asked if Councilman Archambault had told Ms. Smith it was his intention to reduce the number of Sheriff deputies when these five were new officers were hired. Councilman Archambault responded he had explained the E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 3 of 22 Town had a contract with the Sheriffs Department until the end of this year. Ms. Smith had then asked if the Town had a contract for next year to which he had responded no. He stated that Ms. Smith then again asked who was the "agency of record". Mayor Beydler again reminded the Council to address their questions through the chair, as he would not tolerate interrogation as a method of conducting business. Councilman Kavanagh stated that he resented Mayor Beydler tatement that he was interrogating as he was politely asking a question. He felt that the Mayor should interject his position into the debate. Councilman Kavanagh asked Mayor Beydler to ask Councilman Archambault if when he spoke to Ms. Smith did he mention that it was his intent to reduce the overall Fountain Hills police complement by five officers. Councilman Archambault responded that he did not address the Sheriffs contract past the end of the year because the Town did not have a contract past the end of the year. He reiterated that Ms. Smith kept asking who was the department of record as that was what they looked at. Councilman Archambault said what the Council was talking about now was increasing the Marshals Department and had nothing to do with the Sheriffs contract, as they were not the department of record. Councilwoman Ralphe asked Marshal Tate if there was a deadline for acting on this. Marshal Tate stated that with regard to reporting back to the Department of Justice there was. The deadline was December 5. Councilwoman Ralphe asked if a Council decision would be needed this evening. Marshal Tate replied yes. Mayor Beydler reiterated there was an amendment on the floor and asked the Council address their comments only to the amendment at this time. Vice Mayor Fraverd asked Councilman Archambault how he planned to finance this grant. Councilman Archambault felt that would become clear during the budget talks for next year. This action would give the Town the flexibility to use it. Councilman Melendez said this issue dealt with the same subject: the Marshals vs. the Sheriffs contract. He acknowledged that this was a very emotional and complex issue. Councilman Melendez stated that with the events of 9/11 and the additional security needed that he would have a very hard voting against this grant. He said he would have to have a more compelling reason other than the absence of a designated funding mechanism because when it came to the safety of citizens it was the Council's job as public officials to look for those funding mechanisms. He stated this Town had visited the law enforcement issue nine times over the recent years. Councilman Melendez stated that was why he had asked when had the Town received the grant request. He noted that the Council was being put to the wall to make a decision on a very important issue with very little money in the budget. He reflected again on the safety factor that the Council as public officials had an obligation to bring forth. He acknowledged the amendment on the floor but pointed out Nirimt this was such a complex issue that he would like to put it into a different form. Mayor Beydler suggested that Councilman Melendez offer a friendly amendment and it could happen easily. If it were a competitive amendment, or if it would change the vernacular of the intent of the amendment on the floor,then the Council would have to vote on the first amendment and then look at what Councilman Melendez wanted to bring forward. Councilman Melendez asked Mr. Pickering if he made a friendly amendment to table the amendment, could they proceed with a deeper discussion on the issue. Town Attorney Andrew McGuire said the better mechanism would be to ask if those who offered the amendment and the second to withdraw both to allow the discussion to go forward. Their amendment could be offered at a later time. Councilman Archambault asked if Councilman Melendez felt that the Council would be voting on this issue without public input. Councilman Melendez stated he wanted to expand the discussion within the Council. Councilman Archambault WITHDREW his amendment. Councilwoman Ralphe asked Councilman Melendez to explain what that larger discussion would entail. Councilman Melendez said that he believed that this town could not afford a dual agency system and had to go back to a single agency. He said that was a complex issue and he was sorry that the Council was under that deadline. Mayor Beydler asked Mr. McGuire if Councilman Melendez's discussion direction was properly agendized for tonight's meeting. Mr. McGuire agreed that the agenda item would need to be broader to get into that discussion. Mr. McGuire noted that the public would want to have that meeting advertised well in advance in order that a larger venue could happen. Councilman Kavanagh said that when the budget discussions were held, it had been agreed there would be a hiring freeze. Last week when the Council held the emergency session with public input, they had all sworn to cut expenses. He stated the Town was in a financial crisis. He said this law enforcement discussion seemed to be promulgated on the assumption that if the grant were accepted now, then at the end of the budget year the Town would be able to hire those five officers. Because it was a new budget year, the Town would be able to reduce the Sheriffs department by five beats and have those marshals replace them. Councilman Kavanagh restated that after having read the grant material, there was no doubt 'n his mind that it would be considered supplanting. He asked the town attorney if that would be considered supplanting Lend would that be illegal under the grant terms. Mayor Beydler asked if Councilwoman Ralphe was willing to withdraw her second to the amendment. Councilwoman Ralphe WITHDREW her second to the amendment. E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 4 of 22 Mr. McGuire responded to Councilman Kavanagh's question. After looking at the grant application materials, he said the issue of whether or not subsequent budget years could be considered supplanting was clearly wide open. He acknowledged that staff had not had the chance to direct that question to the Justice Department. With all due respect to Ms. Smith, Mr. McGuire said he would not want to rely upon her opinion for this question for two reasons. One, if the Town were found to have supplanted in a subsequent budget year, the penalties could be a substantial financial hit to the Town and might possibly lead to being removed or debarred from future grants. He felt that some of the application language was ominous and proceeded to read from the application in a couple of those questionable areas. This gave him pause as to how the issue of supplanting might be handled. He stated that he was reluctant to give the Council a firm legal opinion that once the contract was up and the budget year was over, that the Town would be in the clear, as he did not know that to be the case. He expressed that caution should be exercised. He felt the Justice Department viewed the grant as a lump sum total number and the background information suggested that more officers on the street were the purpose of this grant. If, in a subsequent budget year, the total number did not change and grant funds were used, he would hate to have to bring that argument before the Justice Department as he thought it had some flaws. If the numbers were to stay the same after applying grant funds, that it would almost be like the attrition rules that the Justice Department states the grant cannot be used for. Councilwoman Ralphe said she had read the grant application language. She pointed out nowhere in the language had the Town talked about keeping the number of officers the same in the future or of using the federal money in an inappropriate way. She felt the application language was very straightforward. This Council had not suggested nor made decisions that would in any way be illegal. She stated that the question was, "Did the Council want to put a match to $375,000 in cold hard cash"? She commented that law enforcement officials stated the population was increasing and the Town would need those additional officers on the street for that reason. She felt the Town should let the Federal Government pay half of the cost. Councilman Archambault reiterated that the Council must focus on the fact that they were talking about the Marshals Department and were not talking about supplanting any of those people. He reminded the Council they were not talking about the Sheriffs Department, as they were not the "department on record". He agreed that because the Town had a contract with the Sheriffs Department this year, it would be supplanting if the Council were to initiate the grant this year. Whether or not the Town contracts with the Sheriffs Department next year for the same number of beats would not Matter. What mattered was that the Council looked at increasing these current Marshal numbers, as the Marshals Itibeapartment was the "department on record". Councilman Archambault noted another fact brought up was that Fountain Hills received preferential treatment when applying for these grants because the Town had used them and the paperwork had been kept clean. He was concerned that if the Town let this grant go, which could be extended, Fountain Hills would start at the bottom of the food chain again. He was not in favor of letting this grant go. Vice Mayor Fraverd commented that the fact of the matter was the Town was in the process of downsizing. She asked Mr. McGuire what his recommendation was regarding this grant. Mr. McGuire responded that he was not the policy maker in this room and could not give a recommendation as to whether or the Council could accept it. He could only tell the Council what possible risks the Town might face. He referred to the two potential risks that he had previously mentioned. Vice Mayor Fraverd noted that Mr. McGuire showed some concern. Mr. McGuire repeated his concerns as being the grant language and a written legal determination from someone at the Justice Department who might prosecute this case that in fact all of the scenarios talked about would not be in violation of this grant and that the Town would not face debarment or fines and penalties. He felt there were enough wiggly things in the grant language that could give the Justice Department flexibility in their enforcement, although the Town's record with the Justice Department would be a positive thing to prevent that. He pointed out that it was his job to inform the Council of potential problems and this time he did not have an answer,as there were unknown factors. Mayor Beydler clarified that this Council was not on record as supporting a supplanting policy and that there was nothing on agenda that indicated that supplanting was being voted on this evening. Mayor Beydler acknowledged Mr. McGuire's concerns and asked if Mr. McGuire had seen anything this evening out of order regarding the council's discussion on accepting this grant. Mr. McGuire said, taken in light that everything was in the public and in the form of a written record without the ability for anyone to explain that written record, the discussion tonight of talking about the end of a contract year was the kind of discussion that he would focus on if he were at the Justice Department. Mr. McGuire said he would focus on asking what exactly was the Council contemplating at this point in the discussion. He expressed concern about k -liscussion at all with the contract year if the true focus was only on the Marshals Department. He found that to be iliwf(consistent. It gave him reason to ask more questions before he was comfortable with saying yes or no on that issue. E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 1 I-21-02.doc Page 5 of 22 Councilwoman Nicola stated it was not her understanding that the Council had given any orders to downsize any areas of staff, including the Marshals Department. She acknowledged that it hurt to lose the park grant. She stated that public safety was the most important amenity that the Council could provide to the citizens and had also often been the most Lexpensive. She commented that the Council was talking about cutting but also talking about looking at sources of revenue. She noted that grants had always been an important revenue source to this town. The Council was also talking about bringing back the property tax. She felt the property owners should pay for public safety. She did not think that the public would have a hard time with coming up with another $100,000 from property taxes to help pay for public safety. Councilwoman Nicola pointed out that previous Town Councils had purposely worked towards the position the Town was in today with regard to the law enforcement issue. She quoted from the Arizona Revised Statute, which gave the Council the right to establish and regulate the police of the town, to appoint watchmen and policemen, and to remove and to prescribe their powers and duties. She stated that was the Council's job and it was time that this Council did their job and made a decision. Councilwoman Nicola agreed with Councilman Melendez that the public has been asking for one direction and one structure and it was time that the public got together and the decision was made. She felt the current form of law enforcement was dysfunctional and needed to be addressed soon. She questioned if the town manager and attorney were prepared to address the issue of liability, as it was a matter of concern. Mr. McGuire responded that he did not think it was in the context of the current discussion. Councilwoman Nicola said that Council could always give staff direction to explore this further. Mayor Beydler asked Councilwoman Nicola to expound on that statement, as he did not understand. Councilwoman Nicola explained that the Council had been told earlier this year that independent contractors would not be covered under the Town's Southwest Risk pool insurance. Her concern was if anyone should be harmed by an action of a sheriff's deputy, was the Town properly indemnified. If there were ever a lawsuit the Town would be sued right along with the Sheriffs Office. Mayor Beydler did not feel that was a proper area to discuss right now. Mr. McGuire agreed. Councilman Melendez again stated that this subject matter was huge. He referred to a briefing paper requested by then Councilman Wyman and Councilwoman Fraverd to discuss liability. Councilman Melendez stated that there was a possibility of a structure change and there was this time constraint. He did not know if an extension could be requested. He requested more public input. He said he or any of the council members could vote tonight on whether or not the town would have their own police department or continue with the Sheriffs but also reminded everyone that in two years there would be four new council members. If this Council voted on the issue tonight, two years from now those new council Members would have the option of changing that decision. Therefore, he said the issue of law enforcement had to be left Now the people, through referendum or whatever may come up. Otherwise this issue would be faced again and again. He agreed one of the significant law enforcement issues was liability. It was his opinion that there was more to this issue tonight than just approving the grant. Mayor Beydler reminded the Council that the motion on the floor was to approve the acceptance of the Department of Justice grant this evening. Councilman Kavanagh agreed that this was kind of disingenuous to suddenly turn this into a discussion of which way the Town should go with regard to law enforcement. He pointed out that essentially that was what this discussion had become. He said that was bad because people did not know that. Many people would have been here to make their comments. He felt the Council should have reviewed the studies and everything else prior to such a discussion. He commented that it was suggested that turning down this grant would in some way result in a loss of the Town receiving preferential treatment. He pointed out that there was no such thing as preferential treatments for grants. All grants were judged on their merits. He said it was also suggested that public safety was an issue and the Town needed more law enforcement and he disagreed that was the issue. He referred to the fact that during the current budget discussions the school district told the council that they no longer needed a marshal resource officer at the middle school and therefore the Town had an extra marshal. He noted that the Council did not know what to do with him. At that time it had been proposed, and the school district agreed,to the doubling up of the marshals at the high school. He did not understand how the Town could have an extra marshal a few months ago and now suddenly there was a dire need to hire five more. He felt that was more of a political statement than a cold calculated administrative statement. Councilman Kavanagh stated that the Town did not have the money for this grant now, and the town manager had told the Council that. He acknowledged that the Town would not have the money later for this, as the Town would be doing major deep budget cuts. Councilman Kavanagh also felt that the Town might experience additional revenue cuts from the State based upon on what was going on there. He said the Town faced major fiscal problems. He was concerned that there was now a potential to add to the problem by entering into an illegal grant that could result in not only the money chaving to be returned but might also result in penalties to be paid. It might disqualify the Town for future grants, ikawssuming that the Council was talking about replacing five sheriffs. Councilman Kavanagh said when this became obvious half way through the conversation, suddenly proponents of accepting the grant totally flipped not only at this meeting but also in what was done last week. Suddenly it wasn't about saving money in this fiscal crisis. Now for public E:\BBender\Documents\Current Minutes 2002\Minutes\ltegular Session 11-21-02.doc Page 6 of 22 safety the Town had to keep the five sheriffs beats and add five more marshals when the Town already seemed to be overly staffed with marshals. He stated the legal questions must be resolved. Councilman Kavanagh MOVED to table this until such time as the town attorney could contact the Department of Justice and get the answer as to whether or not the Town could do this legally. He also directed that this be done expeditiously so that a special meeting could be called %wand address the issue before the deadline and Vice Mayor Fraverd SECONDED the motion. A roll call vote was taken with the following results: Mayor Beydler Nay Vice Mayor Fraverd Aye Councilman Melendez Aye Councilwoman Nicola Nay Councilwoman Ralphe Nay Councilman Kavanagh Aye Councilman Archambault Nay The motion FAILED on a vote of 4 to 3. Vice Mayor Fraverd agreed with Councilman Melendez that the Council was back in the crux of the matter of Sheriffs vs. Marshals. She felt that was tough to have on the agenda this evening, as she did not think that was what everyone was expecting. Vice Mayor Fraverd stated that the council had addressed this issue last February. A consultant was hired who prepared a report and a special meeting was held at the Community Center with a packed house. A policy decision was made at that time, which was to downsize the Marshals Department. She proposed that if the current Council wanted to take another look at this then it needed to be agendized for discussion. Otherwise there was already policy direction in place and that was the direction this Council needed to be heading. Vice Mayor Fraverd stated that the acceptance of the grant would add an additional five marshals and that was in opposition to the direction that was currently on the table. She restated that if this Council wanted to change that direction,they needed to do that as a whole. Councilman Archambault noted that the record spoke for itself. The grant had been applied for on May 20 by the Council's appointed town manager. He suggested that the Town did not have to hire all five marshals next year. The town did not even have to hire one marshal in the next budget year. The Town could apply for an extension on this grant. He proposed that the council not let this grant slip away and then have to go through the budget process all over again, 'hich could take another year and one half by the time the grant was implemented. He wanted to have that grant ailable to the Town. Councilman Melendez said this issue was critical. He felt the Council should listen to their town attorney or they could get themselves into trouble. He acknowledged that he did not want to vote for something that the Council's legal council had advised might be illegal. He asked for Mr. McGuire to clarify. Mr. McGuire said he wanted to be very clear for the record that he did not make the statement that this grant application was done illegally. He expressed that his concern was with the interpretation that he and the Council did not have on whether or not future application of these grant funds would be appropriate under the grant standards. He stated his concern was not with the application, not with the certification made at the time of application, or even the awarding of the grant, but his concern was in subsequent acts to which he did not know the answers. Councilwoman Ralphe said it was clear to her that the Town would be accepting federal dollars to add as many five offices to the Marshals Department and that was all that was being talked about. The Council was not talking about cutting or changing anything. She pointed out that these dollars were going to the law enforcement agency of record and that was the Marshals Department. As the agency of record that department had many responsibilities including disasters and terrorism. Councilwoman Ralphe said she would feel more assured that this town could handle the emergency that everyone hoped would never come with these additional five officers. Bob Travis, 14218 Chinook He questioned why did it take so long to come to the public. He asked why town staff or legal department had not made a call to the Justice Department. Why did a council member have to do the work when town staff didn't? Ron Bruno,Tepee He stated the Council should not assume that the public wanted to pay more in property taxes. He did not feel that more taxes were needed to increase the Marshals Department or the Sheriffs Department. He felt Fountain Hills was very ,...cure. He agreed the Town budget needed to be cut. He was against accepting the grant. Carolyn McClure, 16212 Inca Ave. E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 7 of 22 She stated there was no cost to the Town to accept the grant. She proposed putting the issue to a vote of the people on both the fire and law enforcement issues. She was in favor of the Council accepting the grant. Steve Gendler, 14002 Midland %bode urged the Council to approve the grant. He stated that as the Town's former Public Safety Director, he had initiated the grant last fall after being told by the acting town manager to find ways to deliver law enforcement services at a reduced cost or at least find ways to reduce the costs of delivering law enforcement services. He stated this grant was written to position Fountain Hills law enforcement for its needs over the next three to five year. Not immediately. This was a$375,000 opportunity that would be lost if the Council did not take action on it. He noted that population drives the calls for law enforcement services. There was no doubt that over the three to five years that this grant would run that the population in Fountain Hills would increase. This grant would help soften the impact of that call for service increase. He pointed out that three years ago the population in Fountain Hills was 18,000, the Community Center was just a concept, the town was preparing for Y2K, and terrorism was something that happened overseas. Three years later there was commercial development south of Shea, an operational Community Center, a population well over 20,000 and public safety needs which now included man made as well as natural disasters. He asked the Council to think about where will the Town be in three to five years from now as then they would understand the need for thinking ahead and the motivation that he had been assigned in looking for alternative funding for the Town's law enforcement need. He stated that public safety was one of the fundamentals obligations of local government and it was his opinion that this grant would help the Council meet that obligation no matter how the Council decided to deliver its law enforcement services. At the same time the Town would be able to accomplish that while getting federal assistance. He reminded the council that they had to act now because as of December 5,the grant opportunity goes away. Bob W., 16247 N. Boulder He pointed out that the Council was not listening to their town attorney. The town attorney was concerned as to how the grant would be implemented. He said the Council was being asked to accept the grant tonight and not to implement it. He spoke in favor of the Council accepting the grant. John Turner, Calaveras He was in favor of the Council accepting the grant. He supported the Marshals Department over the Sheriffs Department. Lt was his opinion that the Town needed only one law enforcement agency. Shawn Dow, Buffalo Dr. He pointed out that if the Council accepted the grant, at the end of the three years the Town would be on the hook for $750,000 as the matching funds went away. He commented that the Council was talking about cutting expenses and here the Council was spending the public's money. Bill Eaton, Grassland He asked the Council to accept the grant. If not accepted, the grant would be lost. He noted that only one council member had done the homework and investigated the issue. Phil Gaziano, Sierra Madre(Chair of Law Enforcement Advisory Panel) In Councilman Archambault's previous budget presentation, he had said the Town could reduce $435,000 from the Sheriffs contract. He noted that Councilman Archambault had said the same thing tonight until presented with a problem. If the Town wanted to separate from the Sheriffs Department within the next two years, Mr. Gaziano asked the Council to reduce the contract in public. He had a problem with the reason given, which had to do with swing money, not for the public good. He admitted he would like to see five more law enforcement officers regardless of what the uniform color was but this dual law enforcement service was dysfunctional. He asked the Council to be careful when talking about money and dropping budgets. Bob Scarpetti, 14623 N. Glenpoint Dr. He said he did not understand the dual law enforcement agency system until he had had some experience with it. He spoke against accepting the grant. He said the Council needed to look at ways to save money. He referred to an e-mail that he sent to all council members to which only three responded. He expressed disappointment in the other four. He noted that he had been told by people in the Sheriffs Department that they could serve the entire town for less than %150,000 and do that same exact thing that the Marshals were doing. That was a savings of over$1 million dollars. Mike Hashimoto,Palisades E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 8 of 22 He spoke as an employee of the Marshals Department. He felt the number one thing that Fountain Hills needed was public safety. He said approving this grant gave the Council the option of accepting the funds at a later date. He reiterated that Councilman Archambault found out that the Town could extend the use of it. The Town was not required to use this grant next year or lose it. If the Council did not vote to accept it by December 5, the Council would not have chat option. He felt the Council needed to look forward for five to ten years and keep their options open. Cynthia Bonomolo, 15809 Cholla She spoke against the Marshals Department and a recent incident, which could have resulted in the Town incurring liability. She did not think the Town could afford to lose the Sheriffs Department's expertise. Bill Williams, 14620 N. Love Ct. He stated that a bird in the hand was worth two in a bush. He believed that the Town should utilize the bird in hand to the best of their abilities and get more productivity and leave the bushes alone. Sharon Hutcheson, 16027 Tumbleweed She commented that grants were never free. Part of the reason that the Town had a dual agency was the Town had started utilizing grants. Each year those grants ran out and the Town was faced with funding those positions year after year. She did not understand the Council talking about increasing the Town's budget since neighboring communities were talking about cutting expenses. Last week at the budget hearing, the Council had made suggestions on how to find more money. Suggestion included asking the business community to increase sales tax and the residents to increase property tax. She asked the Council to not ask the public to increase taxes if the Council was going to increase spending. She pointed out that that the Council would increase spending by accepting this grant. She heard tonight that the population increase was a matter of concern. The build out population was expected to be 28,000 to 29,000 but was not expected to happen for ten years. Therefore, Fountain Hills was not experiencing any large population influx; quite the contrary as building permits and revenues were down. Being a former council member she cautioned the Council to listen to the advice of their town attorney, as he was unsure of the legal issues. She cautioned the Council that if they went against his advice, they risked their personal liability. She noted that everything said at this meeting could be very damaging if that grant proved to be illegal in any way. She again asked that the Council listen to the advice of the town attorney as reapplication for grants could always be done. cincent Marcello, Sunburst Dr. He reminded the Council they were considering a grant and how it could affect this community. He pointed out that if the Council accepted the grant, they could extend it. He acknowledged that the town attorney needed to check the legalities of it. If the grant was accepted, the Council could use it if they wished or throw it away at any time. He asked the Council to use common sense. His opinion was that common sense said the Council should take the grant, let the attorney evaluate it and advise them, and then if the Council needed to later use it, they had it. This would give the town options down the road. Councilman Archambault clarified that when he made his presentation last week that he had cautioned that these were his ideas that had not been fully researched. These were suggestions. He asked that the Council look at this grant, realizing that it could be extended. He noted that if the grant were given up, they might not get it back and it could take another year and one half to try to get the grant when it was determined that one was needed to try and implement it. He said he took it very seriously when he receives an email that gave implications of liability as was expressed by Ms. Bonomolo. Councilman Archambault stated he asked the Marshals Department to do some research on that issue. He asked Marshal Tate for the results of that research. Mr. Pickering interjected he did not want to discuss that matter at this time. Councilman Archambault said he had in his possession the interoffice memo. He thought the rest of the Council had also received it and suggested that they read it. Vice Mayor Fraverd asked Mr. McGuire if she had heard that this grant could be used for the Marshals or the Sheriffs. Mr. McGuire stated he did not believe that the Sheriffs Department was included in the grant application. Councilman Kavanagh restated that this was about the Town's serious budget crisis and there were not revenue increases in sight. This was not the time to increase employees. Should the day come where Fountain Hills goes with a one system police department, regardless of whether the uniforms were brown or blue, he did not believe the Town would need the total number of officers presently employed in the combined forces, as there was duplication. He urged the Council to be fiscally responsible and not to add any positions to any department right now. Councilman Melendez stated that the dual agency system was flawed and the decision made by the previous Council was flawed. He made a request to the town manager that the Council look at this law enforcement issue one more time. E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 9 of 22 Mayor Beydler said this was not a budget busting decision by any means. That was a red herring in order to not address the true issue. He said the common sense approach had to do with the growth of the town and how the Council would address law enforcement as time passes. It must be understood that this was a new Council and they could make decisions collectively on their own. This was a town form of government which gave them the opportunity to set direction and policy. It would be unpardonable of the Council to not accept this grant and not give them the flexibility to make decision in the future regarding law enforcement. This was not spending money at this point in time. He hoped the Council would come together and do something positive for the Marshals Department. Mayor Beydler called for the vote. A roll call vote was taken with the following results: Councilman Archambault Aye Mayor Beydler Aye Vice Mayor Fraverd Nay Councilman Kavanagh Nay Councilman Melendez Aye Councilwoman Nicola Aye Councilwoman Ralphe Aye The motion CARRIED on a vote of 5 —2. Mayor Beydler recessed the meeting at 8:10 p.m. and reconvened the meeting at 8:20 p.m. AGENDA ITEM #9 - CONSIDERATION OF THE FINAL PLAT FOR EAGLE MOUNTAIN PARCEL 10/11 TRACT G,A PROPOSAL TO RE-SUBDIVIDE 4.34±ACRES OF LAND KNOWN AS TRACT "G" OF EAGLE MOUNTAIN PARCEL 10/11 SUBDIVISION INTO TWO LOTS. THE PROPERTY IS LOCATED NORTH OF MIRA VISTA DRIVE BETWEEN FIRERIDGE TRAIL AND PALISADES BOULEVARD. CASE NUMBER S2001-27. (THIS ITEM WAS CONTINUED FROM THE OCTOBER 3 COUNCIL MEETING. ON NOVEMBER 1, THE APPLICANT REQUESTED THAT THE ITEM BE CONTINUED TO NOVEMBER 21, 2002.) Mr. Pickering stated that Interim Community Development Director Jesse Drake would make a presentation. Director Drake reviewed the staff report and presented visuals for the Council and public. She informed the Council that an abjection had been received from the Eagle Mountain Homeowners Association that the applicant, Eagle Mountains vestors LLC, did not own the property identified as Tract G and the property had been previously deeded over to Eagle Mountain Homeowners Association to be used as open space. The town engineer had examined the driveway locations due to sightline easements and had declared that these new driveway locations for each lot would be safe and in conformance. She noted that the town attorney had reviewed the objection raised by the homeowners association and examined legal documents with respect to ownership. The town attorney determined that ownership issue should not be a factor in the Town's decision in the proposed replatting because the applicant was the property owner and had met all the requirements of the Town's subdivision ordinance. The applicant submitted evidence that the property was not deeded to the Eagle Mountain Homeowners Association and the Town received confirmation through the conditional title report from Fidelity National Title Insurance Company and the Maricopa County property tax records. Director Drake stated that the Planning and Zoning Commission voted to recommend approval of this subdivision with stipulations and staff concurred. She reviewed the stipulations and noted that stipulations 1 and 4 had been completed to date. Staff and all concerned parties were present to answer questions. Councilwoman Nicola noted that previously it had been noted that this property had been deeded over to the homeowners association. She asked if the applicant could identify what open or common areas had been deeded over to the homeowners association in that tract. Scott Rose, 1850 N. Central Ave., Suite 2400,Phoenix (legal counsel for the applicant) He commented that he had not been involved in the deeding over of those tracts. He thought everything had been deeded other than Tract G and H. Councilwoman Nicola said she had researched the county tax records and had not found any areas deeded to the homeowners association. With regard to the tax records she was surprised to learn that an acreage this size of vacant residential property would have a full cash value of $172 and paid county taxes of $22 a year. She learned that the property was considered a mixed use (agricultural with commercial, with residential not allowed on that tract). She found lat confusing. Mr. Rose responded that he did not know why the assessor had valued the property in that manner. He stated that the fact that Tract G had never been deeded over to anyone outside Eagle Mountain Investors. Councilwoman Nicola asked about Tracts A — F. Mr. Rose stated he would need to verify that. He said there weren't any issues with E:\BBender\Documents\Current Minutes 2002VvMinutes\tegular Session 11-21-02.doc Page 10 of 22 respect to the rest of those tracts, as his client did not have a problem deeding over the rest. He spoke to the issue of taxes on that parcel (Tract G) that had been paid by the association. He believed that to be the case. He explained that was a natural consequence of what had happened when the mistake had occurred in the beginning. kitsv,:ouncilwoman Nicola acknowledged that she had met Mr. Rose in July and he had provided information to the Council. She referred to the Tract Declaration of Covenants Conditions and Restrictions for Parcel 10/11 in Eagle Mountain dated October 28, under Tab 6, Paragraph#3 found on page 2. She asked to hear from staff and the applicant with regard to the statement that restriction on further subdivision without the prior written consent of the declarant and the board of the tract may not be further subdivided. Mr. Rose responded that document had been recorded in 1997 or 98. He explained that the document recorded on top of this document had been done to correct the error of Tract G. If Tract G were deleted from the tract declaration, then that would no longer apply. He confirmed that was the crux of the whole issue. At the time that this plat was recorded there had been a mistake on the plat. Tract G should not have been included in that plat. He noted that the information that he had provided to the Council and to the homeowners association's attorney clearly showed that. That was the reason that the amending documents were recorded in order to make it clear that a mistake was made at that time and that Tract G was not subject to the note that was on the plat nor was it subject to that tract declaration. He clarified that the bottom line was that even if Tract G had been subject to it, there hadn't been any deed given by Eagle Mountain Investors to the association so the property remained in the hands of Eagle Mountain Investors. Mr. Rose acknowledged that yesterday the homeowners association filed a quit title law suit against Eagle Mountain Investors that raised a number issues that they would deal with in the proper forum, which was in court. The forum here was to determine whether or not the landowner, namely Eagle Mountain Investors, had complied with the subdivision ordinance. He and his clients agreed with town staff that they had. Councilman Archambault asked if the other drainage easements had now been deeded over. He questioned since Eagle Mountain has been around for so long why these tracts had not been deeded over to the HOA. It appeared that the homeowners association thought they owned these easements. Director Drake said the town would not involve itself in matters between the homeowners association and private entities. The issue of whether or not they were deeded would not be something in which the Town would be involved. `ouncilwoman Ralphe questioned if the legal action between homeowners and developer were settled in court would ,ese questions come back to the Council. Mr. McGuire said the issue wasn't whether or not the Town had authority to delay a decision on this process. The issue was whether or not that delayed decision would be considered arbitrary or capricious in the eyes of the court. He explained that the subdivision set forth a number of things that needed to be met. There was sufficient evidence that this was the property owner making the application. He understood the quit title action and that the homeowners disagreed with the developer on ownership of this tract. He felt the developers were aware that they were moving forward at risk. Mr. McGuire said he would not advise the Council to wait for that court decision as a part of their decision. That would raise the question as to whether or not the Town had the ability to delay and the developer would have ability to seek immediate action from the court. He reiterated that the Town was not a party in the lawsuit between the homeowners and the developer. Mr. Rose remarked that the notebook contained a very detailed history as to how they got to where they were. It also set forth the fact that Eagle Mountain Investors never intended for this property to be dedicated to the association but had always intended that it would be developed as custom lots. He acknowledged that a mistake was made on the plat. Instead of referencing Tract H as being common area for the association, it said Tract G and Tract H were left out and not referenced. Mr. Rose explained that his clients were now attempting to go forward, correct that mistake, and comply with the original intent of Eagle Mountain Investors. He felt they had demonstrated that they were the property owner. They had applied for and complied with the Town's subdivision ordinance and were therefore entitled to proceed with the replat. As far as the other issues went, his client understood that there was another forum for that, which was the court, and they would deal with that. Mayor Beydler clarified that the Council wasn't being asked to vote on whether or not a mistake was made or who owned what. The Council was being asked to approve a subdivision that staff confirmed met the Code requirements. He said Mr. McGuire was telling the council that they did not have any grounds to deny the subdivision request. Mr. McGuire responded he was suggesting precisely that. The Town did not have any grounds under the subdivision ordinance to deny 'he request in front of the Council nor did the Town have any involvement in the property dispute. IllaftV ice Mayor Fraverd asked Mr. Rose about a report the Council received that was dated July 18t. She asked for clarification as she found it confusing. In one section it stated that Tract H was included on the final plat and in another E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 11 of 22 section stated it was not. Was Tract H included and had that been corrected to delete Tract G? Mr. Rose explained that the map showed Tract H and Tract G. The note on the map that said the tracts were to be dedicated to the homeowners association referenced Tract G and failed to reference Tract H. Vice Mayor Fraverd asked if the correction included Tract H to be dedicated to the homeowners association. Mr. Rose stated that the correction that was done in January did not Illi ,,.rave Tract H. Mr. Rose stated he became involved in this particular issue sometime after the end of January. In going through the records, and looking at the corrective document that was done at that time, he discovered that Tract H had not been included in that tract. Therefore,the document included in the notebook did not include the reference to Tract H. It only corrected the issue with regard to Tract G. However, subsequent to that, and based upon conversations with members of the town, his clients had completed an amended affidavit of correction, which had been presented to Director Drake and Mr. McGuire this evening. Vice Mayor Fraverd asked if everything was now correct. Mr. Rose responded yes, as soon as it was recorded. Vice Mayor Fraverd stated that when she received the staff report and found the correction, she had assumed that it had gone to an agency or bureau that had actually looked through all the documentation and found that his clients had made a mistake. She noted that really did not happen. In reality, all that was done was that his clients stated they made a mistake and took it to the recorder's office with corrected verbiage. She felt that was a pretty easy way of correcting what could be a huge mistake. It caused her to take pause in some of the other developments, which the Council had approved, and take another look at open space. A developer could just say they had made a mistake and the land that was designated open space was now going to have 150 multi-family units. In her discussion with Mr. McGuire about that concern had resulted with him explaining the way around that was through development agreements and through a foundation of council meetings and agenda and that type of thing. Unfortunately this issue was so old that the Town did not have any background on it and she found that to be a sad state of affairs. She was sorry about that. However, if this had been a town property, she would have been willing to go toe to toe with the developer as she was not about to give up town open space. Vice Mayor Fraverd stated that the homeowners would have to take on that challenge. She expressed disappointment in this company and the way that this was being corrected. Vice Mayor Fraverd acknowledged that she might not have an alternative,but she could voice her opinion about it. Beth Mulcahey, attorney for Eagle Mountain Community Association. She stated that Tract G had always been intended to be association common area. She pointed out that Eagle Mountain Ivestors was doing this in order to earn a profit on behalf of their company. She reviewed the facts. Eagle Mountain No/public subdivision report, filed with the Department of Real Estate, for Eagle Mountain Parcel 10/11 indicated that there would only be 63 lots. It also indicated that Tract A through H would be association common area. That was the first time that Eagle Mountain Investors made a public representation that this area would be common areas. According to the original plat for Eagle Mountain Parcel 10/11, Tract G was to be deeded to the association as common area. If Eagle Mountain Investors wanted to amend the plat they could have done so when they were in control of the association. However, they were no longer in control of the association and they amended the plat by recently filing the affidavit of correction,claiming scrivener error. That was the improper way to do so. They needed to get approval from of the board of directors and 67% of the association, which Eagle Mountain Investors did not do at any time. Instead at the end of last year, the developer recorded an affidavit of correction claiming that Tract G was never supposed to be common area and that there had been a scrivener error, which totally circumvented the procedures that they were contractually bound by in the declaration. The developer also made oral representation to the homeowners association that Parcel 10/11 Tract G would be common area. Ms. Mulcahey stated that many of the homeowners paid a lot premium because they believed, based upon the oral and written representation,that this was going to be a common area. She presented a visual depicting numerous homes would be directly affected by this. She pointed out that the association had paid taxes on Tract G in 11997, 1998, 1999, and in 2000. The developer discovered this error sometime in 2000, but the association paid the taxes again in 2001. Even after the developer discovered the error, they continued to not take responsibility. In addition, the association had been maintaining and paying for irrigation and landscaping in this area since 1997. The original development agreement for Eagle Mountain indicated that there was to be a 3 to 1 slope requirement for all cuts and fills. She noted that Tract G was actually steeper than a 1 to 1 slope for cuts and fills. The original zoning commission report indicated that Eagle Mountain Investors agreed to build a retaining wall in this area but they have failed to do so. She said the association had consulted with an engineer who notified the association that if the slope was cut back to 3 to 1 as required by the original development agreement, and a retaining wall was built according to the original zoning commission report,Tract G would be undevelopable. At no time had the association or the engineer found evidence with the Town of Fountains that a ,variance was given on either the slope or the retaining wall. E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 12 of 22 Ms. Mulcahey acknowledged that the association had filed a quit title action in Maricopa County Superior Court which would determine who was the record owner of this lot. She noted that Eagle Mountain Investors was served with the lawsuit today. She stated that the association was also pursuing a claim against Eagle Mountain Investors for massively under funding the association's reserve account, defects in irrigation and drainage, improper cuts in the slopes, and failure o build other retaining walls in the association. She wanted the Council to know that the association had been asking Eagle Mountain Investors for over twelve months to deed the common areas over to them. Last November the association's developer,Eagle Mountain Investors, left the community and moved on and were no longer building on any more lots. At that time, the association had asked the developer to deed the common areas over to the association so that the association could take advantage of a tax law. As of today, the common areas still had not been reported as being deeded to the association. She confirmed that the developer recently submitted to her an affidavit, which they asked the association to sign so that they could move forward with deeding it. She pointed out that it had been twelve months and the developer was still not willing to deed over Tracts G and H to the association. She commented that the association was listed as the property address with the assessor's office as to where tax bill was to be sent. She said ownership had never changed and the homeowners relied on the developer's representation when they bought their homes. Ms. Mulcahey stated erosion issues had recently caused problems for surrounding homeowners. With the slopes being so steep, she felt that would definitely be an issue that would come up if the slopes were not required to be at 3 to 1 and the retaining wall was not built. She indicated what the association's position was on the scrivener's error that had been recorded about January of last year. It would have been the perfect time for the developer to correct their error, if in fact that was what had happened. The developer just changed Tract G. Now, after hiring a new attorney, a new strategy was implemented to explain what happened. She noted that the error still had not been corrected as of today although the town was in receipt of an affidavit that still had not been recorded. She requested that the Town Council postpone a decision on the matter until after the quit title action had been decided. She felt the following were outstanding issues that would give the Council the authority to do so. Eagle Mountain Investors had not complied with the slope requirements or the retaining wall requirements as per the Zoning Commission report and the original development agreement. If the Town Council approved this application tonight, the association would be required to post a bond for this particular bond, which would be a extreme financial hardship on the association. She asked that the Council carefully consider this decision and to please look into the complete breach and disregard of the original development agreement and the original Zoning Commission report. ayor Beydler asked if Ms. Mulcahey was aware that the Council had to look at this application from the perspective of whether or not the request was in compliance with the sub division ordinance. That was primarily what the Town's attorney had advised. He said Ms. Mulcahey was right. The issue regarding the development and the slope and retaining wall issues was of interest to him. He requested staff to respond. Mr. Pickering agreed that was reasonable. Mr. McGuire said it was a valid point that if there was a development agreement provision that was not in compliance, building permits would not be issued. This was not a subdivision issue. In terms of improvement plans and building permits, he assured the Council they wouldn't be issued unless there was full compliance of the development agreement and any required provisions. He said that this went back to his previous point that the developer was moving forward at risk and he felt the developer understood that. The Council needed to take into consideration that the developer was the one who was exposed to the risk. If they plat a lot that could not be built upon, that was not the Town's concern because the building permit would never be issued. Councilman Kavanagh acknowledged that the attorney for the homeowner association had raised a number of other challenges to the Council's action tonight. If the Council assumed that all the factual issues presented by the attorney for the homeowners were correct, on any of the other points would there be a legal reason why this Council could deny. Mr. McGuire stated an answer to that required assuming a conclusion of the quit title action, as most of the points raised were with respect to ownership of the tract and whether or not it was deeded and the provisions were in compliance with the sub division report. He felt a number of things were outside the Council's jurisdiction to consider. The court could certainly do just that. Mr. McGuire cautioned that he would rather have this Council have an order from the court saying they were not to allow any more development on this site rather than have this Council face potential legal action for taking that step on their own. He reminded the Council that they were no longer at the stage of discretion any more. All the boxes had been checked and he did not want to position the Town in the middle of this fight and any decision that wandered outside of those boundaries would put the Town in the middle. Councilman Archambault asked about the point raised about the 63 lots. Was that a correction that would be made on the ,,"1na1 plat in order to go increase the number to 65? Mr. McGuire reminded the Council that this was a replat that would address the additional two lots. The Council's action would be the official approval of the two more lots. E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 13 of 22 Vice Mayor Fraverd asked Mr. McGuire if the development agreement was between the Town and the developer. Mr. McGuire agreed that was correct. Vice Mayor Fraverd then asked if the developer had not fulfilled aspects of the development agreement, didn't the Town have some involvement? Mr. McGuire responded that was precisely the stage when the Town would have involvement through the improvement plan and building permit stage. That was when the .;ite plans would be reviewed for compliance with the development agreement. Until the developer showed the Town what they were going to do, the Town would not know if they met the 3 to 1 slope, or if they built the retaining walls. At the moment it was undeveloped. Councilman Archambault pointed out that the Council would not see a site development plan until after the developer had sold that lot to someone else who might find out that the lot was unbuildable. He was concerned that the developer would be gone and the homeowner would blame the Town for letting a lot like that come through. He asked how would that be answered. Mr. McGuire said that the pending lawsuit on quit title would not allow the developer to sell the lot until that action was resolved. Any buyer, who took possession of that lot with the ownership issue up in the air, would not be the responsibility of the Town. Councilman Archambault wanted to know how to address the issue of an unbuildable lot if it could not be addressed at the developer stage. Mr. McGuire restated that if that lot was sold and it was rendered unbuildable because of the existing regulations on that lot, the action would then be between the person who purchased the lot and the person who sold it to him as a buildable lot. It would not be the Town's discretion to get in the middle of what would be a private property fight. Councilman Melendez MOVED to approve the application and Councilman Kavanagh SECONDED the motion. Ed Charbin, 15167 E. Twilight View Drive He acknowledged that he was a homeowner in Eagle Mountain that backed to Tract G. He stated he had paid a lot premium and had been told that the area would be a common area. He asked the Council to postpone their action until the quit title action was complete. Greg Dias, 15119 E. Twilight View Drive He also paid a premium for the lot and he was also told that Tract G was designated to become a common area. He echoed the request that the Council postpone their action until the quit title action was complete. When it came back to coolle Council, he asked that they make the developer comply with the development agreement. Charles Rolichecka, 15155 E. Twilight View Drive He stated that he was told that tract would never be developed and that he would have to pay a premium for his lot. He minded the Council that many in Eagle Mountain had help to elect the new council members. He felt the Council should be on their side and not the developer. He asked the Council to remember their constituents. Susan Usilton, 9234 Indigo Dr. She stated she was an Eagle Mountain resident. She asked if the issue of the abandonment of non-vehicular easement was still an option. She expressed concern for how unstable the slopes were. She felt this was a safety issue. Burt Fisher, Sunset(Treasurer of the Eagle Mountain HOA) He talked of discrepancies in the association's past financial records. He felt the Council had the option to refuse to grant the vehicular easement. He asked that the Council let the homeowners settle the lawsuits. Fred Corey, 15174 E. Twilight View Dr. He had been told the same story and charged a premium. He identified himself as a civil engineer who was familiar with slopes and building. He challenged the town engineer to come out and examine the line of site as he felt it was not safe. Robert Stanton, 9426 Indigo He echoed the other homeowners' comments. Kevin McGuire, 9834 Jagged Circle He reiterated previous statements made by the other homeowners. He asked that the Council to deny the request to abandon the non-vehicular access. ,/ice Mayor Fraverd stated that on other plats the Council had required concept plan to show that they were buildable lots. She thought that was done on the preliminary plat stage, which she acknowledged was past. She asked if there was a way to go back to these two lots to require concept plans to show that the lots were indeed buildable. Director Drake replied E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 14 of 22 that these lots were quite large. She discussed the visual of the area and stated that staff had determined that these two lots were indeed buildable lots. The engineering department had determined that there was safe access to the lots and that was why the driveway locations were determined before this application to the Council. Staff did not foresee any problems. The utilities were in place and the applicant has agreed to meet the stipulations contained in the report. She ,stated that staff did not have any inclination that these would not be buildable lots or staff would not have brought the application forward. Vice Mayor Fraverd asked if staff had looked at the applicant's ability to change to a 3— 1 slope and that the lots would still be buildable. Director Drake explained that the issue of the cut slope was that it probably did need retaining walls. That would be an issue that staff would look at when the building permit came through. She acknowledged that they would be sub dividable, which was the issue being considered tonight but the issue of the retaining walls would be looked at in the future. Councilman Melendez stated that the Ms. Mulcahey mentioned the issue of mudslides/erosion. He read from stipulation #5 contained in the staff report. He asked how that would relate to the issue brought forth by Ms. Mulcahey. Director Drake facilitated the explanation by visually displaying a map of the area and pointing to those affected areas. Engineering staff was recommending that a swale be installed. This would be a v or a u shaped cut that would direct the water from the affected area down to the road and into the natural drainage area in the road that was established in the improvement plans. Staff felt that would eliminate much of the runoff and some retaining walls would still be needed. Councilwoman Nicola asked if all of the stipulations from prior development been met. Director Drake deferred to Senior Civil Engineer Jim Leubner. Mr. Leubner asked if Councilwoman Nicola was referring to the original Eagle Mountain plat or the stipulations for this project. Councilwoman Nicola confirmed prior. Mr. Leubner stated that the original stipulations had all been met for the Eagle Mountain Plat and in reference to their development agreement. Councilwoman Nicola commented that they had not needed a swale or retaining walls. Mr. Leubner confirmed that was not required at that time. On further investigation, staff now felt it was truly needed and that was why the Council saw it as a stipulation. Councilman Archambault questioned if these lots had been proposed on the original subdivision plat, would that cut have been required to be a 3 to 1 slope. Mr. Leubner said the town's maximum slopes cuts were at 3 to 1. The development agreement for Eagle Mountain had other stipulations in it that allowed them to cut reference to slope but to cut greater plan 10 feet, which was another town criteria. He stated that he would have to look at the development agreement to Nibeinswer that question properly. As far as the lots being developed, the lots would be developed per the Town's subdivision guidelines and the development agreement. With regard to lots 64 and 65, and in reference to the non- vehicular access, Mr. Leubner stated the town engineer had gone out in the field and had extensively looked at both lots. The town engineer had placed the driveway access for lots 64 and 65 where he felt was appropriate and safe. He noted that the site visibility easements were also shown on the plat. He acknowledged that there was a difficult curve and there were some site problems. He confirmed that as the lots were developed, the developer would be required to cut back or modify the slopes so that the driveways could not be seen. Mayor Beydler asked how far back would the developer have to cut to meet the 3 to 1 slope. Mr. Leubner answered he was not sure since he had not looked at their grading plan. He assured the Council that when the plan came in and staff looked at the development or building permit for the lots, the plans would comply with the Town's guidelines and the lots would have safe access. Mayor Beydler questioned how valuable would the lots be if the developer had to comply with some requirements that ate the lots up. Mr. Leubner replied that the lots were developable. He acknowledged that the question was valid in that similar lots in other development had required extensive retaining walls, slope work and so forth. He did not feel a determination could be made until staff saw the building permit. Mr. Leubner suspected that both of these lots would not be the standard hillside lot and would require significant work to comply with the Town's standards. Councilman Kavanagh said one of the most difficult tasks that confronted the Council was an application with problems based upon residents having objections because they were mislead and felt they were treated unfairly. He stated that he did not know if what caused the misunderstanding had been on purpose or accidental and the residents were looking for the Council to stop it. Councilman Kavanagh said the difficulty with the Council's job was that they were not always empowered to stop something. The Council had to comply with the law and could not use their governmental power to deny something that could not be legally denied. He reiterated the town attorney's opinion, which was that there was only a civil remedy that could be pursued by the homeowners. He felt each council member had tried to find a reasonable ,,eason to reject this application that would not get the Town sued. For that reason, Councilman Kavanagh stated he did not have a reason to deny this application. E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 1 1-21-02.doc Page 15 of 22 Councilman Archambault asked if a motion could be made that would approve this plat upon stipulation that any lawsuits were settled for being subdivided. Mr. McGuire stated the Council would be stepping out of bounds. Vice Mayor Fraverd questioned if there would be a problem if the Council continued this item until the lawsuit was settled. Would the Town be risking anything? Mr. McGuire acknowledged that there was always risk and that he had been waiting for the kiwThuncil to ask this question. He pointed out there were two legal processes here that were not of the same length. Mr. McGuire did not think that a short delay would create a cause of action from the developer but he was of the opinion that an indefinite delay would put the Town in harms way. Councilwoman Ralphe asked if it was possible for the Council to continue this matter for two weeks so that they could review the development agreement. Mr. McGuire said a continuance to ask staff to ensure that the development agreement provisions had been met was probably ok. He cautioned the Council against doing so because staff had reviewed those provisions already. The engineering staff had concluded it had not run afoul in this particular case. Mr. McGuire noted that one outstanding issue was the cut/slope although that would not be determined until the lot was developed. Mayor Beydler stated that the Council had been put in a position where they were asked whether or not the application met the Town's subdivision. As elected officials, the Council had the fiduciary responsibility to look out for liabilities on the Town's behalf. Unless the Council had a good reason to deny the application that would stand the test of litigation or interpretation of code,their hands were tied. Mayor Beydler said he would have to vote in the Town's best interests. The vote was taken and the motion CARRIED on a vote of 6— 1. Councilwoman Nicola cast the nay vote. AGENDA ITEM #10 - CONSIDERATION OF RESOLUTION 2002-46 ABANDONING ALL RIGHT, TITLE, OR INTEREST IN PORTIONS OF CERTAIN PUBLIC RIGHTS-OF-WAY LOCATED WITHIN FOUNTAIN HILLS FINAL PLAT 208 BETWEEN PARCEL 1 AND PARCEL 8 AS RECORDED IN BOOK 144,PAGE 4 OF THE RECORDS OF THE MARICOPA COUNTY RECORDER WHICH HAVE BEEN FOUND TO BE NO LONGER NECESSARY. Mr. Leubner reviewed the traffic report prepared by Kimley-Horn & Associates, Inc. as he displayed area maps to facilitate the understanding of the report. He stated that all issues relating to the abandonment of the right of way had L'o;een resolved. Staff recommended approval. Councilman Archambault asked how wide was Stewart Vista on the plat. Mr.Leubner responded the right-of-way was 84 feet and the intended street width was 60 feet. Councilman Archambault asked what the reduced width would be. Mr. Leubner responded 40 feet. Mayor Beydler asked what type of traffic controls were being considered for the area of Avenue of the Fountains. Mr. Leubner replied that as development came in, staff would look at the various intersections, placement of driveways, and whether or not it was necessary to have a right turn pocket lane, which would alleviate some of the problem. He commented that staff had talked about not allowing parking on Verde River Drive as it was a minor collector and would receive a significant amount of the traffic's impact. He pointed out parking was available for the shops on Avenue of the Fountains. Staff was only suggesting the potential for parallel parking on Stewart Vista at this time. He acknowledged that the applicant had not discussed parking with staff at this time. Mayor Beydler asked if staff anticipated a turn out in order to allow people to be dropped off. Mr. Leubner replied yes, there were two things to discuss: the potential of a turn pocket lane coming in to the complex to get the traffic off the minor collector street and the potential of a turn pocket coming off Avenue of the Fountains and entering Verde River. He acknowledged that option had not been analyzed but staff had considered it. Vice Mayor Fraverd MOVED to approve Resolution 2002-46 as presented and Councilman Archambault SECONDED the motion. Councilman Kavanagh thanked MCO who had agreed to this plan. He acknowledged that MCO had spent their money to fund a lot of the work and the study although they did not have to. He congratulated MCO and the citizens involved for making this plan happen. Walt Franklin,Nicholas Dr. (Downtown Development Consensus Team) He stated the group expressed their appreciation to staff and the Council for their cooperation on behalf of the citizens. He remarked that the citizens would forever enjoy the park that would be in that area. He reminded the Council there had been a second request that was also time sensitive, which was the proposed RFP for a design concept for the downtown area. He noted that the team would be back before the Council after the first of the year. He turned in 100 business eoples' signatures that felt this was also an important issue. He looked forward to moving on it right after the first of the year. E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 16 of 22 The motion CARRIED unanimously. Mayor Beydler recessed for a break at 9:50 p.m. and reconvened at 10:00 p.m. ,,,Director Drake briefed the Council on the status of the proposal referred to by Mr. Franklin. Staff was completing historical research on the project and contacting other communities to see what they had done in similar situations. In conjunction staff was simultaneous working on identifying funding mechanisms, as it was all within the Town owned right-of-ways. She acknowledged funds were available but that staff had been directed to look for other monies other than just the town funds at this time. In-house files were also being researched on this project, which included the Hyatt Palmer study. AGENDA ITEM #11 - PUBLIC HEARING ON ORDINANCE 02-16 AMENDING CHAPTER 5, SECTION 5.11.B.1 OF THE ZONING ORDINANCE FOR THE TOWN OF FOUNTAIN HILLS TO CLARIFY THE GRADING STANDARDS IN ALL ZONING DISTRICTS FOR FIRE SAFETY CLEARING AND GRADING. CASE NUMBER Z2002-09. Mayor Beydler recessed the regular session and opened the public hearing at 10:01 p.m. Director Drake stated that this year there had been an inordinate number of clearing violations due to the drought conditions. The violations were into the non-disturbance portions of private lots, vacant lots, and in hillside protection areas. She displayed photos of clearing violations. She explained clearing violations contributed to particulates in the air, dust problems,erosion, run-off, and affects drainage. She pointed out that these clearing were being done under the guise of a fire clearance. Staff has written a clarification as to what was considered fire clearance. Director Drake stated the passage of this ordinance would allow the property owners to create a fire safe zone around their property, while still preserving, to the maximum extent possible, the natural desert in the non-disturbance and hillside areas on their lots or on a vacant lot adjacent to their lot. Staff was trying to clarify that brushing, clearing, trimming or grading in all zoning districts on any vacant lots or undeveloped lots in non-disturbance areas or hillside protection easements would require a grading permit and would have to be preapproved by the Fire Marshal or representative. In no case would brushing, clearing, trimming or grading extend further than a defendable space that should be defined and limited to a band of land 'ieasured horizontally up to 30 feet from the structure. She discussed the visual example in order to facilitate the vari 'ouncil's understanding. Director Drake said the elimination of a wildlife habitat for protective species would be prohibited. If there was a violation of this subsection,there were penalties that would apply just the same as the Town's other disturbance violation penalties, which were fines and could be found in Section 5.11 of Fountain Hills' Zoning Ordinance. The Planning and Zoning Commission recommended approval on October 24,as did staff. Councilwoman Nicola asked for a definition of the word "trim". Director Drake responded that would be determined by the Fire Marshal on a particular property. The Fire Marshal would make that determination depending on if the vegetation was dead or if it created what was considered a ladder, which was a methodology for the fire to travel through that space. Councilwoman Nicola asked how this ordinance compared to ordinances in other jurisdictions in the desert. Director Drake deferred to the Fire Marshal as this was a national standard and the reason the Town was adopting that language. Fire Marshal Mark Zimmerman explained that staff had used the NFPA 299 (National Fire Protection Association guidelines for the urban wildlife interface and how to handle a defensible space) and portions of Scottsdale's ordinance and rules of how they handled the situation in order to come up with the wording contained in this proposed ordinance. Councilman Kavanagh asked what the difference was between a non-disturbance zone and a hillside protection easement area. Director Drake replied the difference was in the way that the non-disturbance or hillside protection area was legally determined. Councilman Kavanagh acknowledged that the intent of this ordinance was to prevent blading and clearing although it also prohibited trimming. He noted there were many people who had mesquites, palo verdes, and shrubs and bushes, which were in a non-disturbance or hillside easement areas of their lots, that if left to continuously grow would not look attractive. This proposed wording would prevent homeowners from trimming. He pointed out that people could also have weeds growing outside this area that could not be pulled. He expressed concern that people would be forced to to through a vigorous application procedure and inspection to basically trim a tree that was on their own property as „„opposed to gutting the tree. Director Drake confirmed that the current Town regulations prohibited that activity today. Staff was suggesting that if those types of foliage were within the defensible space and the Fire Marshal determines that E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 17 of 22 they were a hazard, staff would like to have them trimmed. She noted that was currently contained in the Zoning Ordinance under the grading standards. Councilman Kavanagh questioned that if someone owned a lot and there was a tree or bush within the non-disturbance or thwaillside area, even though it had gone through all the procedures and was platted, the property owner could not trim a bush? Director Drake clarified that for fire clearing they could but what staff found they were doing was blading. That was why staff wanted to regulate this. This would allow the Fire Marshal to determine what the defensible space was and what the actual need was. Councilman Kavanagh said he was not trying to permit blading but he was talking about trimming. He stated he had a mesquite on his property that he liked to occasionally trim and shape it. Director Drake restated that was already a restricted activity right now. Councilman Kavanagh found that amazing that no one in town probably knows that they can't trim. Councilman Kavanagh suggested removing the word trimming from the ordinance. He asked if that would have the affect of then allowing residents to trim things on their property. Mr. McGuire responded that the removing of the term "trimming" would probably clear up that potentially vague provision. He noted that the word "trimming" was not defined anywhere in the Zoning Code. He said he did not have a problem omitting "trimming" as long as brushing, clearing, and grading were retained with the understanding that someone might say that they were only trimming and do something as shown in the picture. Vice Mayor Fraverd asked how the 30-foot maximum was determined? Fire Marshal Zimmerman answered that the 30- foot distance was a national fire protection standard of what was considered reasonable. Mayor Beydler closed the public hearing the 10:18 p.m. AGENDA ITEM #12 - CONSIDERATION OF ORDINANCE 02-16 AMENDING CHAPTER 5, SECTION 5.11.B.1 OF THE ZONING ORDINANCE FOR THE TOWN OF FOUNTAIN HILLS TO CLARIFY THE GRADING STANDARDS IN ALL ZONING DISTRICTS FOR FIRE SAFETY CLEARING AND GRADING. CASE NUMBER Z2002-09. Councilman Kavanagh MOVED to approve Ordinance 02-16 with the word "trimming" struck and Vice Mayor Fraverd seconded the motion. Lice Mayor Fraverd asked if brushing and clearing were defined in the definitions. Mr. McGuire said clearing yes and brushing no. Vice Mayor Fraverd stated that brushing needed to be defined under the definitions. The motion CARRIED unanimously. AGENDA ITEM #13 - PUBLIC HEARING ON A SPECIAL USE PERMIT APPLICATION FOR "NEXTEL COMMUNICATIONS" TO ALLOW A WIRELESS COMMUNICATION FACILITY CONSISTING OF AN EQUIPMENT ROOM WITHIN AN EXISTING MOTEL AND A TWO NEW CHIMNEY-STYLE STRUCTURES CONTAINING STEALTH ANTENNAS AT THE COMFORT INN. CASE NUMBER SU2002- 08. Mayor Beydler recessed the regular session and opened the public hearing at 10:20 p.m. Mr. Pickering deferred to Director Drake for an overview of this issue. Director Drake reviewed the staff report and provided a visual of the project. She noted that this would have been a permitted use handled administratively except the application did not conform in two areas: the existing wireless communication structure and the new proposed area were not within a 1,000 foot separation and it was closer than 300-feet to residentially zoned property. However, the Council was allowed to waive the separation requirements according to the Town's Zoning Ordinance. She noted that the chimney style facility was not suitable for co-location because of the nature of the wireless industry antennas needing to have vertical separation and this was too short to have vertical separation. She commented that this hotel might be available for co-location of other carriers in some other manner in the future. The Planning and Zoning Commission recommended approval, as did staff. Councilman Archambault asked what the reason was for the 1,000-foot separation. Mr. McGuire explained the separation listance as being an aesthetic issue. When it was written it was meant to apply to towers. Councilman Kavanagh said this was an excellent project. He felt the Town needed a staff member trained on the technical aspects of this industry. Director Drake interjected that before working for the Town she had been in the E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 18 of 22 wireless industry and was very familiar with the associated technology. She explained that the different carriers had what could be described as a honeycomb grid over the entire state, which was stacked on top of one another. The antennas needed to directly talk with one another by line of sight. Different carriers not only operated at a different layer but they also operated at different heights. The more cell phones in the community, the more layers would be needed as each kkirantenna could only carry so many calls at one time. She noted that it was a vertical and a horizontal separation that determined where the antennas were placed. Councilman Kavanagh questioned how the Council would know whether or not the next carrier's application was telling them the truth about their antenna placement. Director Drake responded that the carriers provide their RF engineers' information and staff also reviewed this information. Councilman Kavanagh asked if staff requested that the RF information certify that there weren't any alternative sites within the Town that would meet the carrier's requirements. Director Drake replied that the applicant would have to show a list of other sites on the application as to what they had looked at and why they chose the site on the application. The applicant would need to provide information stating why this was the preferred site. Councilman Kavanagh requested that staff check to see if the application also asked if there were any other acceptable sites. Councilwoman Nicola asked if the residents in Fire Rock Casitas notified. Director Drake responded yes. Mayor Beydler closed the public hearing the 10:28 p.m. AGENDA ITEM #14 - CONSIDERATION OF A SPECIAL USE PERMIT FOR "NEXTEL COMMUNICATIONS" TO ALLOW A WIRELESS COMMUNICATION FACILITY CONSISTING OF AN EQUIPMENT ROOM WITHIN AN EXISTING MOTEL AND A TWO NEW CHIMNEY-STYLE STRUCTURES CONTAINING STEALTH ANTENNAS AT THE COMFORT INN. CASE NUMBER SU2002- 08. Councilman Archambault MOVED to approve the special use permit for the Nextel Communications as presented and Councilwoman Nicola SECONDED the motion. The motion CARRIED unanimously. GENDA ITEM #15- PUBLIC HEARING ON A SPECIAL USE PERMIT APPLICATION FOR A 77-UNIT MULTI-FAMILY RESIDENTIAL DEVELOPMENT IN A "C-2" INTERMEDIATE COMMERCIAL ZONING DISTRICT, KNOWN AS "THE VILLAS DEL CIELO", LOCATED IN TOWN CENTER II, LOTS 2, 3, AND 4, SOUTHWEST OF AVENUE OF THE FOUNTAINS, WEST OF THE POST OFFICE, NORTH OF EL LAGO BOULEVARD,AND SOUTHEAST OF AVENIDA VIDA BUENA,CASE NUMBER SU2002-02. Mayor Beydler recessed the regular session and opened the public hearing at 10:30 p.m. Senior Planner Burkhardt stated that he had combined reports for the special use permit request and the condominium subdivision application (agenda item#17). He proceeded with the PowerPoint presentation and discussed the scope of the application and the project design. He noted that the Town had received two letters of opposition with regard to the building height of the central unit. Senior Planner Burkhardt stated that the Planning and Zoning Commission recommended approval on a vote of 4— 1 and staff was also recommending approval. Vice Mayor Fraverd noted the project covered a large area. She asked what was the allowed coverage and what was the proposed coverage. Senior Planner Burkhardt responded they were allowed 50% per the multi-family zoning requirements and the total area was roughly 12.5 acres. They were allowed 275,492 sq. ft and were proposing 170,000 sq. ft., which was approximately 100,000 sq. ft. less roof area than what was allowed by the 50% lot coverage requirement. Councilman Archambault asked what was the width of street. Senior Planner Burkhardt replied it was 26'. Councilman Archambault asked if parking on the street would be allowed. Senior Planner Burkhardt responded that was a private development and the Town did not have any restrictions or control over that. However that was one of the reasons why the town required that 19' driveway space to allow for tandem parking. Councilman Archambault questioned that because of the size of the development why did he not see any amenities. Senior Planner Burkhardt clarified there was an amenity area and he indicated where it was located visually on the displayed map. He explained that the applicant chose not to show the layout of the area, but it was proposed to have a swimming pool and an arcade or sundeck and then a „„overed area. He explained that the Planning and Zoning Commission's stipulation included the review of the conceptual site plan of that area prior to final plat approval so there would be a design presented. Councilman Archambault asked if the disturbance that was transferred on to the other site was the church site. Senior Planner Burkhardt said that was E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 19 of 22 correct. Councilman Archambault noted that in the 1997 development agreement they were allowed 400 dwelling units and if this were approved it would leave 103 left to be developed under the town center development agreement. Senior Planner Burkhardt agreed. iiime2ouncilman Kavanagh asked if amenities were required or was that voluntary. Senior Planner Burkhardt replied that was voluntary. John Craft,Crystal Ridge Drive(member of the homeowners association for Crystal Ridge) He stated that his development abuts this proposed development. He expressed concern that grading for the two story complexes would add as much as 12 feet or plus. When adding that factor in to the height of the two story complexes, they felt they would be looking at a building height of approximately 40-feet on these units. He noted that many of the homes on Crystal Ridge and Crystal Point had paid a premium for the views to the north and east. There was some concern for possible obstruction that might occur as a result of this. They requested that the Council recommend the grade be lowered a few feet so that they would not have quite the height on those two story units. Councilman Kavanagh asked for staff comment on that citizen question. Senior Planner Burkhardt stated that the maximum building height from natural grade as designed was 30-feet. He assured the Council that at no point from the existing grade would any building break that plain of 30-foot elevation as for the most it was all a cut. He summarized that the project really remained at 27-foot from natural grade and would not exceed 30-feet from natural grade. Councilman Kavanagh noted that the retaining walls were not used to raise the elevation as they were cut walls. Senior Planner Burkhardt explained that they would be used to fix the existing 1 to 1 slopes. Mayor Beydler closed the public hearing the 10:46 p.m. AGENDA ITEM #16 - CONSIDERATION OF A SPECIAL USE PERMIT APPLICATION FOR A 77-UNIT MULTI-FAMILY RESIDENTIAL DEVELOPMENT IN A "C-2" INTERMEDIATE COMMERCIAL ZONING DISTRICT, KNOWN AS "THE VILLAS DEL CIELO", LOCATED IN TOWN CENTER II, LOTS 2, 3, AND 4, SOUTHWEST OF AVENUE OF THE FOUNTAINS, WEST OF THE POST OFFICE, NORTH OF EL LAGO `OULEVARD,AND SOUTHEAST OF AVENIDA VIDA BUENA, CASE NUMBER SU2002-02. vitioice Mayor Fraverd MOVED to approve the Special Use Permit application with stipulation as presented and Councilwoman Ralphe SECONDED the motion. The motion CARRIED unanimously. AGENDA ITEM #17 - CONSIDERATION OF A PRELIMINARY PLAT FOR "THE VILLAS DEL CIELO", A 77-UNIT CONDOMINIUM PROJECT, LOCATED ON LOTS 2, 3, AND 4 OF THE TOWN CENTER II FINAL PLAT,CASE NUMBER S2002-06. Councilwoman Nicola MOVED to approve the Preliminary Plat as presented and Councilman Archambault SECONDED the motion. Councilman Archambault asked if the bulkhead was there to divert the water underground or somewhere else or was it going to sit idle until it fills. Senior Planner Burkhardt thought they overflowed into the right-of-way. Dave Montgomery, civil engineer for the project, addressed the question. He stated that the basins were designed to retain water and would collect water. Water would be allowed to run underneath the driveway entrance and the overflow would run over to the next retention basin and equalize. The basins had to drain within 36 hours by the Maricopa county Health Code so pumps would be installed wherever water could not be drained by gravity. The motion CARRIED unanimously. AGENDA ITEM #18 - CONSIDERATION OF A TEMPORARY USE PERMIT TO OPERATE A HOME- BASED DAY CARE FACILITY AS A HOME OCCUPATION AT 15214 E. PALOMINO BOULEVARD,A.K.A. PLAT 604A,BLOCK 1,LOT 9,CASE NUMBER TU2002-02. Planner Denise Ruhling reviewed the staff report. The need for this temporary use permit on this application was spurred -nly by the presence of a swimming pool on site. She reported that the applicant had operated under a temporary use Wki„r.ermit that was approved in the year 2000. This was a request for a renewal of the temporary use permit. She acknowledged three letters of opposition had been received on this application, which facilitated the need for the Council's approval. Planner Ruhling pointed out there had not been any complaints over the last two years on this site. E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 20 of 22 The applicant cares for four children on site and the day care hours were from 5:30 a.m. to 7 p.m. with most of the time not extending that long. The applicant did not provide day care on weekends and did not have any overnight stays for day care. councilman Kavanagh questioned if there were any other public agencies that had oversight of this operation. Planner Ruhling stated that the applicant would be required to be certified by the State if she were to watch more than four children. As she cared for four or less the applicant was not regulated by the State. Vice Mayor Fraverd noted that the applicant met all of the requirements of the temporary use permit and they were also a home-based business. She noted that this was an exempted business use. In looking at the letters of protest, she wondered if neighbors felt there was a lot of traffic as that might be a problem and posed a trip scenario. She pointed out that a home-based business was allowed five-stops a day and she thought that aspect should be looked into. She suggested that component apply to the limited number of trips apply to this business as well so there wasn't quite so much traffic in front of the house. Vice Mayor Fraverd asked if a stipulation could be added. Planner Ruhling understood the Council could add stipulations. She expressed her concern on the fact that the applicant only watched four children. The trip calculator scenario suggested by Vice Mayor Fraverd would work if two children were from the same household. She felt the Town would be cutting the applicant's clientele if the children came from different families. Staff recommended approval with the continuation of the stipulations as contained on the approved temporary use permit back n 2000. Planner Ruhling reiterated that the Town had not received any complaints about any excess traffic, although the applicant had been required to provide an additional tandem parking space for her clientele to drop off and pick up. Vice Mayor Fraverd asked to hear from the applicant as to if the applicant would be able to watch four children if the home occupation (five trip) stipulation applied to her business. Leona Matiello,the owner of the day care She responded that might not be possible depending on the clientele that she had at that time, as four individual families would exceed the five-trip limit. She reiterated that she had not had any complaints thus far. She suggested that the problem people might have had with this application was in the verbiage labeling her business as a day care center. When the public saw the zoning sign in her yard she thought they might have assumed that it was a rezone issue and an attempt make the home into a commercial building. She stated that was not the case. She brought up there were others in town Nirrlat also provide home day care and they have never had problems of this sort because they did not have the issue of the swimming pool. Councilwoman Nicola referred to one of the letters of opposition received from Mary Murphy. Ms. Murphy had requested it to be read into the record since she was unable to attend the meeting. Councilwoman Nicola asked if that was something that should be addressed. Mr. McGuire stated that the letter could be given to the clerk so that the text of the letter could be included in the record. Councilwoman Nicola was satisfied with the clerk doing so. (A copy of this letter is available upon request and is on file as a public record with the permanent meeting minutes.) She wanted to know if it was appropriate to add a stipulation stating that the pool would not be used prior to a reasonable hour. Ms. Matiello responded that the pool was never used when the children were in her presence. Councilwoman Ralphe applauded the efforts of people who provide care to children, as it was pro children and a help to parents. She thought eight trips per day was very logical. Councilwoman Ralphe MOVED to approve the Temporary Use Permit as presented and Councilwoman Nicola SECONDED the motion. The motion CARRIED on a vote of 6 to 1. Councilman Melendez cast the nay vote. AGENDA ITEM#19 - CALL TO THE PUBLIC. No one came forward. Mayor Beydler expressed his thanks to all the former council members who participated in the financial forum. AGENDA ITEM#20-ADJOURNMENT. ,,:ouncilwoman Nicola MOVED that the Council adjourn and Councilman Archambault SECONDED the motion, which CARRIED unanimously. The meeting adjourned at 11:00 p.m. E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 21 of 22 TOWN OF FOUNTAIN HILLS By: �, � /L Jon ' ydler, ayor ATTEST: C1/144-&---6 Cassie B. Hansen, Director of Administration/Town Clerk PREPARED BY: /jY ' 26- ,l �. Bev Bender,Executive Assistant CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Iteptitwanti=rvieetttiw Session held by the Town Council of Fountain Hills on the 21st day of November 2002. I further certify that the meeting was duly called and that a quorum was present. DATED this 19th day of December 2002. Cassie B. Hansen, Director of Administration/Town Clerk L E:\BBender\Documents\Current Minutes 2002\Minutes\Regular Session 11-21-02.doc Page 22 of 22