HomeMy WebLinkAbout2006.0316.TCREM.MinutesTOWN OF FOUNTAIN HILLS
MINUTES OF THE REGULAR AND EXECUTIVE SESSION OF THE
FOUNTAIN HILLS TOWN COUNCIL
March 16, 2006
Mayor Nichols called the meeting to order at 5:30 p.m.
AGENDA ITEM #1 — VOTE TO GO INTO EXECUTIVE SESSION: PURSUANT TO A.R.S. 38-431.03.A7,
FOR DISCUSSION OR CONSULTATION WITH DESIGNATED EPRESENTATIVES OF THE PUBLIC
BODY IN ORDER TO CONSIDER ITS POSITION AND INSTRUCT ITS REPRESENTATIVES
REGARDING NEGOTIATIONS FOR THE PURCHASE, SALE OR LEASE OF REAL PROPERTY.
(SPECIFICALLY, THE TOWN HALL LEASE.) AND (ii) PURSUANT TO ARS 38-431-03.A.1. FOR
DISCUSSION, OR CONSIDERATION OF EMPLOYMENT, ASSIGNMENT, APPOINTMENT,
PROMOTION, DEMOTION, DISMISSAL, SALARIES, DIDCIPLINING 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 THE DISCUSSION OR CONSIDERATION OCCUR AT A PUBLIC MEETING. THE PUBLIC
BODY SHALL PROVIDE THE OFFICER, APPOINTEE OR EMPLOYEE WITH WRITTEN NOTICE OF
THE EXECUTIVE SESSION AS IS APPROPRIATE BUT NOT LESS THAN TWENTY-FOUR HOURS
FOR THE OFFICER, APPOINTEE OR EMPLOYEE TO DETERMINE WHETHER THE DISCUSSION OR
CONSIDERATION SHOULD OCCUR AT A PUBLIC MEETING. (SPECIFICALLY REVIEW OF THE
COMMUNITY CENTER ADVISORY COMMISSION SENIOR SERVICES ADVISORY COMMISSION
PUBLIC SAFETY ADVISORY COMMISSION MCDOWELL MOUNTAIN PRESERVATION COMMISSION
APPLICATIONS).
Vice Mayor Schlum MOVED to convene the Executive Session and Councilmember Archambault SECONDED the
motion, which CARRIED UNANIMOUSLY. Mayor Nichols recessed the Executive Session at 6:19 p.m.
AGENDA ITEM #2 — RETURN TO REGULAR SESSION
Mayor Nichols reconvened the Regular Session at 6:30 p.m.
INVOCATION — Pastor Larry Finch, Four Peaks Community Church.
ROLL CALL — Present for roll call were the following members of the Fountain Hills Town Council:
Councilmember Archambault, Mayor Nichols, Vice Mayor Schlum, Councilmember Kavanagh, Councilmember
Kehe and Councilmember McMahan. Town Attorney Andrew McGuire, Town Manager Tim Pickering and Assistant
Town Manager Ellen Pence, and Town Clerk Bev Bender were also present.
MAYOR'S REPORT
(i) The Mayor read a Proclamation honoring the Fountain Hills High School Championship Boys Basketball Team.
Mayor Nichols stated that the Falcons Basketball Team of Fountain Hills High School won the State Championship in
2005 and claimed their second State Championship this year. The Mayor said that it was his honor to officially
recognize the second great achievement of the Falcons of Fountain Hills High School. Mayor Nichols congratulated
the team on their victories and accomplishments and presented the coach with a copy of the Proclamation, pins of the
Fountain and the Corporate Seal of the Town of Fountain Hills as a token of the Town's appreciation. He requested
that members of the team introduce themselves. The Mayor also presented the team with Sun's tickets for an April
game and said that he hoped all of the members would join him at this event. He added that a prototype of a sign was
underway that would recognize every Fountain Hills championship team. Mayor Nichols requested that the entire
team sign the winning ball and said that 2005 and 2006 balls would be displayed in the Town Hall.
Mayor Nichols also reminded citizens to attend the Town's St. Patrick's Day Festival to be held on Friday, March 171h
from 11:00 a.m. until 7:00 p.m. He said that the Fountain would turn green at 12:00 p.m. and 6:00 p.m. and outlined
the planned festivities.
(ii) The Mayor introduced the showing of the "Sharing Our Town: A Guide to Wild Fire Safety at Home" video.
Town Manager Tim Pickering stated that the Town presented the debut of a new video series as part of the
improvements in communication with its residents and businesses. He noted that the video series was called "Sharing
Our Town" and the first program. "A Guide to Wild Fire Safety at Home", was a six -minute program created by
Town employees and featured Town employees and two residents. He advised that the program would be broadcast
repeatedly on Channel 11 and marketed to service organizations and various groups by offering a designated speaker
to show the video and answer questions about wildfire safety.
Mr. Pickering introduced the members of the team responsible for the video and thanked them for their hard work and
service to the Town of Fountain Hills.
Mayor Nichols congratulated everyone on "a job well done."
CALL TO THE PUBLIC
None.
CONSENT AGENDA
AGENDA ITEM #1 — CONSIDERATION OF APPROVING THE TOWN COUNCIL MEETING MINUTES
FROM MARCH 2, 2006.
AGENDA ITEM #2 — CONSIDERATION OF RESOLUTION 2006-12, APPROVING THE NAMING OF
THE COMMUNITY CENTER INFORMATION DESK.
AGENDA ITEM #3 — CONSIDERATION OF RESOLUTION 2006-22, AUTHORIZING THE SUBMISSION
OF PROJECTS FOR CONSIDERATION FOR GRANT FUNDING FROM THE GOVERNOR'S OFFICE
OF HIGHWAY SAFETY.
Councilmember McMahan MOVED to approve the Consent Agenda as read and Councilmember Kavanagh
SECONDED the motion.
A roll call vote was taken with the following results:
Mayor Nichols Aye
Councilmember Kavanagh Aye
Vice Mayor Schlum Aye
Councilmember Kehe Aye
Councilmember McMahan Aye
Councilmember Archambault Aye
The motion CARRIED UNANIMOUSLY (6-0).
Mayor Nichols noted that Item #2 on the Consent Agenda was to approve naming the Community Center Information
Desk area the "Evelyn and Ken Breting Reception Center" in recognition of the couple's years of devoted and
unwavering service to the Town and all of its citizens. He requested that Mrs. Breting step forward, presented her
with a pin of the Fountain, and expressed appreciation to her and her deceased husband for all of their contributions.
ACTION AGENDA
AGENDA ITEM #4 — CONSIDERATION OF RESOLUTION 2006-13, REGARDING A DEVELOPMENT
AGREEMENT BETWEEN THE TOWN OF FOUNTAIN HILLS AND FIREROCK PLAZA LLC
Planner Kate Zanon addressed the Council relative to this agenda item and provided a brief overview of this case. She
said that she would discuss the Development Agreement and then address the second item. The development
agreement is to allow a transfer of preservation rights for a new proposed retail center to be located in the southeast
corn of Town at 17225 E. Shea Boulevard. The applicant had been unable to design a viable commercial use with
Town Hillside -related regulations and had brought the case before the Council. She referred to a vicinity map and
reported that the project included a total of 18,650 square feet of building area with all the square footage intended for
retail use. The building was intended to house 12 retail suites. The combined lot size was approximately 113,692
square feet with proposed lot coverage of 16% over the two properties where up to 60% of lot coverage is allowed.
The building would be up to 25 feet at its highest point from natural grade. Access to the site would be from a joint
access entrance off of Shea Boulevard and this access was for use by developments on lots 7 (Kern Plaza), 6 and 5.
Pedestrian access to the site would be from two locations along Shea Boulevard and one on Firebrick Drive. The
applicant also provided sufficient parking for the site accommodating retail use as well as the potential for restaurant
or medical use.
Ms. Zanon stated that the site was rezoned on July 1, 2003 to Commercial 1 as case Z2003-05 and as a result was
subject to disturbance calculations based on a slope analysis. That type of slope analysis breaks the property down
into slope categories and referred to a chart depicting the various slope categories. She noted that anything less than
10% could all be disturbed; 10 to 20% allowed a 30% disturbance; 20 to 30% allowed a 20% disturbance and in areas
greater than 30%, only 10% could be disturbed. The applicant had chosen to use the aggregate disturbance method,
which meant they took the total amount of the slope analysis that needed to be preserved and then they aggregated
that into one viable building envelope instead of small, little pockets and all of the preservation also was put into one
contiguous pattern. She noted that the over -disturbance was 11,634 square feet. The Town does have some history
with these types of development agreements. In 2001, the Southwest Inn at Eagle Mountain and Four Peaks Plaza did
the same type of thing and in 2002 Desert Vista Place Condominiums also did this and the current project was fourth
one coming before the Council.
Ms. Zanon explained that the proposal would benefit the Town in four ways: 1) portions of the Town that were
burned in the early 1990's fire would be revegetated; 2) there would be a 60% contribution to a traffic signal on Shea
Boulevard at the common entrance to the project; 3) there would be improvements to the Shea Boulevard right-of-
way with features such as grading, paving, landscaping and drainage enhancements; and 4) pedestrian access fill
would be provided to the site by a meandering sidewalk along Shea Boulevard as well as along Firebrick Drive. She
advised that staff recommended approval of the request.
Councilmember Kavanagh MOVED to approve Resolution 2003-13 and Vice Mayor Schlum SECONDED the
motion.
Councilmember Kehe commented that the two agenda items were closely related and, the cut and fill was part and
parcel of the Agreement, and asked whether they could be combined. Town Attorney Andrew McGuire responded
that staff could present both reports and then the Council could take independent action on each. The Council
concurred that they should proceed in this manner.
Ms. Zanon discussed Agenda Item #5, dealing with a cut waiver for "Firerock Plaza," located at 17725 E. Shea
Boulevard, aka Plat 704, Block 6, Lots 5 and 6. Case #CFW2005-03. She explained that the request was for a 1.4-
foot maximum cut in a drive aisle and parking area at a proposed commercial development. The area in question was
a small mesa marking the high point on the property and would be over cut by approximately 1.4 feet. She noted that
Section 5.11(C)(4) of the Town of Fountain Hills Zoning Ordinance allowed the Town Council to waive the 10-foot
maximum cut limitation. The Planning and Zoning Commission approved the concept plan for this project at their
February 9, 2006 meeting, subject to Town Council's approval of the cut waiver. The section of drive aisle and
parking area that exceeds the maximum cut is a total of 2,536 square feet. This cut area equates to only 2.2% of the
total property area. The extra cut allowance in this area would allow the applicant to develop the site in a safe manner
that would provide for ease of traffic flow and sufficient parking on the site. The cut reaches a maximum depth of
11.4 feet from natural grade. The area exceeding the maximum cut of 10 feet was oval shaped and represented a
small mesa on the property.
Ms. Zanon noted that staff identified three objectives in reviewing cut and fill waiver requests, as follows: 1) to
reduce the visual impacts of the proposed development as viewed from the adjacent properties and rights -of -way; 2)
to review the measures applied by the designer to minimize the amount of cut and/or fill on the lot; and 3) to consider
possible alternatives to the proposed plan that would conform to the ten -foot maximum cut or fill. She explained that
the applicant met the three above listed objections in the following way: 1) the visual impact from the over cut area
on a small portion of the property would be minimal and screened from all four vantage points. The property slopes
uphill from Shea Boulevard and there would be both a landscape buffer and screen walls; therefore there would be no
visual impact from Shea Boulevard. The property to the west would also be buffered by the natural topographic
change (screen wall and landscaping). The drive aisle and parking lot had been designed to connect to Kern Plaza t
the southeast, therefore there would be no visual impact from this perspective either; 2) The property was subject to
several changes in elevation; there was over a 15-foot elevation change. As a result, development of a commercial
project had been difficult. Staff worked with the applicant to minimize the cut area to be isolated in the location of
the small mesa marking the tallest portion of the property; and 3) since the rezoning of this property in 2003, two
different concepts had come forward. All struggled with the topographic changes in the property. Staff felt that the
applicant made the best out of a very difficult development situation and recommended approval of the cut waiver.
Mr. McGuire recommended that the votes on the two issues remain separate since a Development Agreement was
involved. He added that they could certainly have discussion prior to the motion if they would prefer to discuss it at
this time.
Councilmember Kehe commented on in -lieu payment for mountain preserve. He said that the applicant was
exceeding the allowable disturbance by 11,634 square feet and had chosen to make an in -lieu payment that he
understood could be used to "pay down" the existing debt or used to buy additional land for preservation. He said
that in the past the practice had been to "pay down" debt and Mr. Pickering concurred. He added that his concern
dealt with the price per square foot that the developer was required to pay in order to reach an equitable cost as an in -
lieu payment for the land. He discussed the tremendous increase in land values that occurred over the last year and
said that if they multiplied the $2.83 per square foot by the 11,634 square feet of over -disturbance would result in an
acreage figure of $131,697. He stated that he was not aware of any acre parcel of property in Town that could be
purchased for that amount. He added that he took what he considered to be a conservative figure based on State Trust
Land sales ($200,000 an acre) and divided that by 43,000 square feet and came up with a figure of $4.65 a square
foot, which he considered more reasonable in view of current property values. He noted that that would increase the
in -lieu payment from $32,924 to $54,093 and expressed the opinion that the figure was more equitable and realistic.
He questioned whether the $200,000 an acre would be considered equitable if they were to buy land for conservation
purposes. He commented on the fact that State Trust Land being sold at auction was sold on the basis of "highest any
best use" — it did not make any difference whether it is used for conservation. He expressed the opinion that $200,00
an acre was conservative and appropriate. He asked that this be considered as they discussed this matter.
Councilmember Kehe added that they were also being faced with the issue of the Town's codes and ordinances and
said that the citizens strongly voiced support for strictly enforcing those regulations. He stated that at some point he
would hope that the Council would draw the line and clearly define what could be done on a piece of property in
terms of modifying construction to adapt to the land. He said that over the last couple of weeks they had been asked
to adapt the land to the construction and he believed there would be similar requests in the future. He requested that
the Council "draw that line" and come up with some type of criteria so that good decisions could be made.
Councilmember Archambault discussed the cut waiver and the fact that current laws allowed the applicant to take ten
feet. He said that they could take the end of the building and raise it 1.4 feet; step that one section up and eliminate
having to cut more than 10 feet at that end. He asked whether that was possible. Ms. Zanon replied that she would
defer to the applicant because maximum slope grading was allowed on drive aisles and she was not sure whether they
would exceed that. She added that in this location there were ADA (Americans With Disabilities) parking spaces that
would most likely be affected.
Councilmember Archambault commented that they were only talking about one foot four inches if they did that and
noted the section was a large portion of retail space that he believed could easily be stepped up.
Councilmember Kavanagh said that the Town's laws and regulations had done an excellent job in keeping the Town
looking more natural and preserving views. He noted that the laws were broad and not every law could be applied to
every case. He cautioned against strictly enforcing a law and winding up with something that made things look
worse. He said that they were talking about a knoll in the middle of a retail shopping area and the lot was located
between two of the Town's largest intersections, faced an auto repair shop and the Desert Dog Off -Road Store and
three fast food restaurants, not pristine desert preservation. He stated that he did not see a problem, even with th
exemption for the Hillside Ordinance because they were not talking about a hillside. He expressed the opinion that if
the neighbors had a choice they would rather allow the cut and have the building be a foot and a half lower. The idea
was to make buildings less obtrusive and he believed it was reasonable to grant the exemptions. He added that with
respect to the price, the standard was set by what was done in the past and they were talking about $2.83, an
approximate 250% increase over 2002 values. He said he did not believe that property values had risen much more
than 250% since that time and added that the $2.83 might be a little bit more than the actual value increase. He stated
that he did not oppose any of the requests.
Vice Mayor Schlum said that he originally agreed with Councilmember Kehe's comments but after listening to
Councilmember Kavanagh, he agreed that it would not make sense to ask an applicant to build something higher,
especially when there were residential areas surrounding it. He stated that right across from an existing narrow wash
there was a newer home that would be sensitive to the lights and the wall would make sure that headlights were not
glaring into the home. He added the opinion that it would be silly to have a 1.4-foot tall speed hump made of desert
in the middle of a parking lot so he agreed that a waiver in this case was appropriate. He stressed the importance of
continuing to look at each situation on a case -by -case basis. He said he would place his trust in staff's judgment as
far as the number they arrived at. He commented on the Development Agreement and the vegetation and stated that
under 1.2(C) (revegetated area) he would like a little more pre -determination so the Council would have a better idea
as to what they are agreeing to.
Mr. McGuire advised that that particular provision was intended for staff approval and there was a requirement that
the applicant would provide a complete inventory prior to any construction as far as what was out there today and
they would also have to submit an acceptable landscaping plan that the Town would have to approve before they
could move forward. He emphasized that the idea was to match the palette in quantity and quality of materials when
they revegetate and also to take that burnt out area and replicate it with the same kind of densities that exist on the un-
burned areas of the site. He added that based on his conversations with Ms. Zanon, he did not have any concerns in
this area.
In response to a question from the Vice Mayor regarding Section 5.5, Successors, Mr. McGuire confirmed that this
Agreement would carry over to subsequent owners should it be sold prior to being developed. He explained that
Development Agreements run with the land rather than the owner. He discussed the proposed 10-year term and
added that the term was always difficult for staff to come up with in terms of development because of the ways
development windows "open and close" for certain types of land uses. He said they were never certain that someone
could build tomorrow or within the next couple of years and based upon the way construction had been going, the
smallest window would be probably be five years and ten years appeared to be more reasonable. He added, however,
that should the Council desire, a modification to that term could be made. Vice Mayor Schlum stated that he would
wait to see what the rest of the Council thought about the issue and said that he was in favor of the proposal with
possibly a little shorter term.
Councilmember Archambault commented on the cut waiver and said that the grade along the property was almost
flat. He noted that his lot had an approximate two -foot grade and said that if they look at the upper left hand corner of
the site, they were at 49.5 or 49 and he suggested that they grade the land up and step up the units so that they would
not have a situation where they needed over the 10-foot cut waiver. He added that they could still remain in
accordance with ADA parking regulations.
Mr. Bryan Rice, speaking on behalf of the applicant, said that slope was not the issue but rather the fact that the
pedestrian access way was created from the back of the project and in order to remain in compliance with ADA
regulations, they had to raise the back access so the residents in the rear would have access to the property. He
emphasized that they had to maintain a certain slope so that the residents could get down the ramp and into the
property and stepping it did not work.
Councilmember Archambault said that he was not convinced that the property couldn't be re -designed in a better way
in order to alleviate the cut.
Councilmember Kehe stated that he would like to propose an amendment to the Development Agreement. He said
that the rationale was that the current figure for the in -lieu payment is $2.83 a square foot, which would equate to
property R1-10 being purchased at $50,000. He reiterated that there were no other properties in the Town that could
be purchased for that amount of money. He suggested that a more reasonable number, based upon current valuations
($200,000 an acre), would be $4.65 a square foot, which would bring the applicant's in -lieu payment to $54,100.
Councilmember Kehe MOVED that the in -lieu payment be determined using the base figure of $4.65 a square foot.
Councilmember Archambault SECONDED the amendment to the motion.
Mayor Nichols commented that when the Town purchased the mountains, they bought 354 acres for $13 million
which turned out to be .87 per square foot. He said that they were using this kind of money on this Developmen
Agreement to pay down the debt that was incurred for that property. He added that they had taken the .87 per square
foot and increased it by 225% to get to the $2.83. He expressed the opinion that $2.83 was a fair number with
rationale as far as what the Town would use the money for. He said that he could not support the amendment.
Councilmember Kehe said that the mountain land was purchased at less than $1.00 per foot and said he had the
appraisal for the 2001 State Trust Land Plan and noted that the land was appraised at $25,000 per acre. He estimated
that the land value would increase anywhere from $200,000 to $250,000 per acre. He added that the Mayor also said
that they were going to use the monies to pay down the debt and noted that the definition of an in -lieu payment was in
lieu of giving land and it was not designed as a pay down on other debt; it was in lieu of giving land.
Councilmember Archambault concurred with Councilmember Kehe's comments and questioned where anyone could
buy a piece of property to replace what would be disturbed. He added the opinion that $200,000 an acre was an
excellent price
A roll call vote was taken with the following results:
Vice Mayor Schlum Aye
Councilmember Kavanagh Nay
Councilmember Kehe Aye
Councilmember Archambault Aye
Mayor Nichols Nay
Councilmember McMahan Nay
The motion FAILED for lack of a majority vote (3-3).
Mayor Nichols asked whether anyone from the public wanted to speak on the first motion regarding the Development
Agreement.
Phyllis Kern, 16514 Tombstone, stated that she was very familiar with the project and agreed with Councilmember
Kavanagh that the Council should be "business friendly". She noted that the property was a very difficult one to
develop, not the typical flat parcel of land, and stated the opinion that the developer had adapted the property to the
land. She urged the Council to approve the request without increasing the costs. Ms. Kern added that the Town was
desperately in need of a traffic light out there and asked that they direct their attention to this important issue.
Mayor Nichols thanked Ms. Kern for her comments.
Councilmember Archambault commented on the size of the development and expressed the opinion that the project
could easily be reduced to eliminate the 11,000 square feet of extra disturbance.
Councilmember Kavanagh clarified that the motion they were going to vote on was to approve the Development
Agreement with the lower amount.
Mayor Nichols called for the vote and a roll call vote was taken with the following results:
Councilmember Kehe Aye
Mayor Nichols Aye
Councilmember McMahan Aye
Vice Mayor Schlum Aye
Councilmember Archambault Aye
Councilmember Kavanagh Aye
Councilmember Kehe said that he voted Aye based on the lay of the land.
The motion CARRIED UNANIMOUSLY (6-0).
Mayor Nichols asked for a motion on Agenda Item #5, consideration of the cut waiver for "Firerock Plaza."
Vice Mayor Schlum MOVED to approve the cut waiver for "Firerock Plaza" and Councilmember McMahan
SECONDED the motion.
Phyllis Kern readdressed the Council and pointed out that the applicant was already being penalized since they could
only build one-story high. She said that if they decreased the square footage, the price of the land increased.
Mayor Nichols advised that he agreed with Councilmember Kehe that the Council must be as responsive to the public
as far as the Strategic Plan and adhering to the Town's Zoning Ordinances. The Mayor added, however, that the
Zoning Ordinances were pretty broad because they allowed the Council to render interpretations in cases where it
made sense to do so. He pointed out that the unusual cases were brought before the Council and a large number of
requests to expand beyond the Zoning Ordinances were "stopped at the front desk upstairs." He added that the
Council did not see the things that staff talked to developers about and told them their proposals were not acceptable.
He said that the Council hears the cases that were not deflected by staff and they were being asked to exercise some
judgment in this particular case based on certain criteria. He stated the opinion that in this case, taking the 16 inches
off of the knoll would not hurt a view corridor, it would make it better, and the positives that they gained outweigh
losing 16 inches of dirt that would not benefit anyone.
In response to a question from Councilmember Kavanagh, Ms. Zanon confirmed that because of the screening on all
four sides, the cut waiver would be barely visible from anyone outside of the property.
Mayor Nichols called for the vote on this agenda item and a roll call vote was taken with the following results:
Vice Mayor Schlum Aye
Councilmember Kavanagh Aye
Councilmember Kehe Aye (Present*)
Councilmember Archambault Nay
Mayor Nichols Aye
Councilmember McMahan Aye
(*Councilmember Kehe said that his concerns dealt with the issue of Town codes and ordinances and said he would
vote "present" recognizing that "present" represented an affirmative vote.) Town Attorney McGuire clarified the
motion CARRIED by majority vote with 4 Ayes, 1 Nay, and 1 Abstention.
AGENDA ITEM #5 — CONSIDERATION OF A CUT WAIVER FOR "FIREROCK PLAZA," LOCATED AT
17225 E. SHEA BOULEVARD, AKA PLAT 704, BLOCK 6, LOTS 5 AND 6. CASE #CFW2005-03.
Please refer to discussion under Agenda Item #4 above.
AGENDA ITEM #6 — PUBLIC HEARING OF ORDINANCE 06-03, A PROPOSED TEXT AMENDMENT
TO THE ZONING ORDINANCE FOR THE TOWN OF FOUNTAIN HILLS RESTRICTING
FRACTIONAL OWNERSHIP USES TO LODGING ZONING DISTRICTS ONLY. CASE #Z2005-06.
Mayor Nichols declared the public hearing open.
Town Manager Tim Pickering advised that the Council requested that staff conduct additional research regarding this
issue and they were prepared to update them on their findings.
Senior Planner Bob Rodgers provided a brief overview of this agenda item, a public hearing on Ordinance 2006-03,
involving a proposed text amendment to the Zoning Ordinance for the Town of Fountain Hills. He said that in April
of last year, the Town received a letter of complaint from the Sunridge Canyon Community Association regarding a
house in Shadow Canyon that was being used as a timeshare. Last June Town Council asked staff to look at the issue
and report back with some options and last August staff presented three different options for the Council to consider:
1) the "do nothing" option; 2) the "prohibit them everywhere" option, and 3) allow them within the Lodging Districts
option. The Council directed staff to pursue Option No. 3 and last September staff was instructed to present the issue
of fractional ownership to the Planning and Zoning Commission and request that they either initiate the zoning text
amendment or make a determination that such action was not necessary. In January, the Planning and Zoning
Commission initiated the ordinance; in February the Commission held their public hearing and voted unanimously to
recommend to the Council that they approve the proposed amendments.
Mr. Rodgers explained that fractional ownership covers a number of various uses and in its most common any
recognizable form it is known as a "timeshare." However, in an attempt to provide for all variations and for th
purposes of this ordinance, staff was proposing that the three definitions, as amended and outlined in proposed
Ordinance 06-03, be approved.
Mr. Rodgers provided background information relative to staff research into this matter and said that three
municipalities were included in the report because they dealt with fractional ownerships in three different ways.
Paradise Valley enacted a complete prohibition on timeshares in 1983 and since that time it had yet to be challenged
in court and to date they had not reported any enforcement issues. Scottsdale allows timeshares by right in some
residential, commercial and industrial districts only. The ordinance had not been challenged to date and no
enforcement issues were reported. Sedona allows timeshares by right within their Lodging Districts and any new
construction or conversions must also receive a Special Use Permit from the City Council. No enforcement issues
were reported in Sedona.
Mr. Rodgers commented that as a result of staff's review, they determined that Sedona's ordinance most closely
matches the way in which the Town Council had indicated they wanted to proceed and said that staff's
recommendation follows this model and would allow fractional ownership within the Town's three Lodging Districts
(L-1, L-2 and L-3). The proposed ordinance would amend three sections of the Zoning Ordinance, Section 1.12, 5.22
and 16.02, which would adopt the definitions of fractional ownership, prohibit fractional ownership in all districts
except the three Lodging Districts, prohibit commercial fractional ownerships and prohibit any signage in residential
areas that advertise fractional ownerships.
Mr. Rodgers further stated that the Council had two options, determine either that fractional ownership was a land use
that should be regulated within the Town or that it was not an appropriate land use and should be prohibited in all
districts. He added that staff recommended approval of the proposed ordinance.
Mayor Nichols thanked Mr. Rodgers for his presentation and asked whether there were any citizens wishing to speak
on this item.
Town Clerk Bev Bender advised that Mr. Robert Thompson filled out a card indicating his strong support for
approval of the proposed ordinance but did not wish to speak at this time.
Mr. Bruce Tominello, 16208 N. Sunridge Drive, addressed the Council regarding this issue. He noted that the entire
issue surfaced as a result of a minority of property owners in the Shadow Canyon subdivision in Sunridge Canyon. .
He noted that the property in question was one of the best -maintained properties in all of Fountain Hills. He said that
there had never been a call to the Sheriff's Department for any disturbance created by visitors and added that there
was a full time concierge on the premises at all times, whether or not guests were present. He pointed out that the
owners of the property had each invested over $400,000 for the privilege of ownership in the property and paid
monthly maintenance fees and were personally responsible for any damage done when they were in residence. The
property had no violations of the current rules and HOA regulations and a drive by this property would not show any
difference from any other property in the area. The developer submitted his plan to the Town and received approval.
The property did not negatively affect the property values of surrounding homes and was not the type of development
that would "run rampant" in the Town. He said that as President of the North Heights HOA, they had none, Firerock
had none and Eagle Mountain had none — this was the only one in Sunridge Canyon. He stated that what they had
was a few people making trouble for others who had not caused them any type of trouble and an attempt on their part
to get the Town to do their dirty work for them instead of amending their own CC&Rs and taking the risk that it
would not hold up in court. He added that restricting this use would be absurd and said it would result in the potential
creation of flophouses and rental shares and would be asking for trouble. He urged the Council to use this timeshare
in Shadow Mountain as a model to others of the type of development of which the Town approved. He requested that
the Council vote in support of staff's recommendation.
Mayor Nichols thanked Mr. Tominello for his input.
Councilmember Kavanagh asked whether Mr. Tominello was speaking on behalf of the Homeowners' Association
and responded that he had spoken as a private citizen.
Mayor Nichols declared the public hearing closed.
AGENDA ITEM #7 — CONSIDERATION OF ORDINANCE 06-03, A PROPOSED TEXT AMENDMENT TO
THE ZONING ORDINANCE FOR THE TOWN OF FOUNTAIN HILLS RESTRICTING FRACTIONAL
OWNERSHIP USES TO LODGING ZONING DISTRICTS ONLY. CASE #Z2005-06.
Please see Agenda Item #6 for discussion.
Councilmember Kavanagh MOVED to approve Ordinance No. 06-03 and Vice Mayor Schlum SECONDED the
motion.
Councilmember Kavanagh thanked former Councilmember Marianne Wiggishoff for bringing this issue forward. He
said he viewed the issue as a serious problem and one that went undetected until it was brought to someone's
attention. He stated that he did not relish the thought of waking up one day and finding that the home next to his was
now a timeshare where each month strangers perpetually came and went. He expressed the opinion that fractional
ownerships represented one of the greatest threats to the character of Fountain Hills. He added that he realized there
might be a handful of multi -million dollar homes that this would involve that would attract quality clients; he noted
that ordinances were not written for one unique situation, they must look at the whole Town. He strongly urged all
homeowner associations, individually, to adopt their own restrictions regarding this important issue.
Vice Mayor Schlum asked how this would affect the current timeshares they were aware of that were not located in
Lodging Districts. Mr. Rodgers responded that if they were in existence now and could document this fact, they
would continue to operate without any problem. He also confirmed that the Town only had three Lodging Districts at
this time.
In response to a question from Councilmember Archambault regarding the 11 or more undivided interests and the
basis for that number, Town Attorney Andrew McGuire said that this was not an easy area to define but the difference
was in the fractional ownership owned by someone other than an actual owner, whether or not they were LLCs or
Limited Partnerships or individuals who owned the components, it was the 12`h piece that they recognized in this type
of ownership using the Shadow Canyon property as an example. He noted that 11 of the owners were entities or
people for theirl/1lt" share and the 12`" share was the Limited Liability Company that owned a 1/12`h share in all of
the other homes owned by that group. He explained that that was the component that allows it to be used as
"borrowed time or traded time". He said that that was the distinction that staff had drawn. He discussed enforcement
and stated that if they had knowledge that one of them had advertised, that was one thing but if there were people who
were sharing a home between different groups of families or entities, they would not be covered by the ordinance and
staff would not have knowledge of them in the way they would the groups that advertised.
Councilmember Archambault commented that the ordinance then was strictly for commercial enterprises. Mr.
McGuire responded that that was essentially the case. It targets the entities that treated it more as a timeshare than a
divided up piece of property that everyone was a complete owner in. The extra piece allowed the "trading" that
triggered it over to a timeshare.
Mayor Nichols called for the vote.
The motion CARRIED UNANIMOUSLY (6-0).
AGENDA ITEM #8 — CONSIDERATION OF ORDINANCE 06-07, AMENDING CHAPTER 7 OF THE
TOWN CODE DELETING THE MOVIE THEATER DEVELOPMENT FEE CATEGORY.
Mr. McGuire advised that at the January 191h Council meeting, the Town Council adopted the Commercial
Development Fees for the end of this Fiscal Year and beyond. One of the categories that was added as an amendment
was a carve -out for a specific type of use for a movie theater and the fee was set at zero. The intent of the amendment
was to provide incentive for that type of use. He said that he had concerns regarding this issue and spoke with the
Town's consultant and they shared the same concern — that the State Statute required that the fees be uniformly
applied. He advised that they did not have any particular confidence that this particular carve -out was supportable
and because of that he believed it wise to bring it back before the Council in the form that it was originally presented
prior to the amendment. He added that if the Council wanted to bring incentive to a particular type of use, there wer
many other vehicles available to accomplish this goal. He said that in the future the Council could consider these
types of items (encouraging certain types of land uses through incentives) on a case -by -case basis.
Vice Mayor Schlum asked whether the fact that the inconsistent fee would apply to only one type of business carried
any weight and Mr. McGuire responded that they would still be applying fees in a non -uniform manner and initiating
a specific carve -out. He noted that the Statutes were very clear in this area. He added that if the Town as a legislative
body decided to encourage a use, they could create incentives in other ways and could actually reduce the fee to zero
functionally; they had the authority to do so.
There were no citizens wishing to speak on this item.
Vice Mayor Schlum MOVED to approve Ordinance 06-07 and Councilmember Archambault SECONDED the
motion.
Councilmember Kavanagh clarified that the reason he proposed the lower fee was not to "give an incentive" to a
movie theater but rather to remove a disincentive for a movie theater to come to Town because he considered the fees
to be disincentives to economic growth. He said he was not supportive of granting incentives, however, he would
respect the Town Attorney's opinion in this regard.
The motion CARRIED UNANIMOUSLY (6-0).
AGENDA ITEM #9 - COUNCIL DISCUSSION/DIRECTION TO THE TOWN MANAGER. ITEMS LISTED
BELOW ARE RELATED ONLY TO THE PROPRIETY OF (i) PLACING SUCH ITEMS ON A FUTURE
AGENDA FOR ACTION OR (ii) OR DIRECTING STAFF TO CONDUCT FURTHER RESEARCH ANLA
REPORT BACK TO THE COUNCIL:
NONE.
AGENDA ITEM #10 — SUMMARY OF COUNCIL REOUESTS BY TOWN MANAGER.
Mr. Pickering stated that at the last Council meeting he was directed to set up a Committee for the FAA issue and
reported that this has been accomplished. He reported that three members of the public had stepped forward and
expressed their willingness to serve on that Committee, in addition to the Mayor. He said that they were in the
process of scheduling a meeting.
Mayor Nichols thanked Mr. Pickering.
AGENDA ITEM #11— ADJOURNMENT
Councilmember Archambault MOVED that the Council adjourn and Councilmember McMahan SECONDED the
motion, which CARRIED UNANIMOUSLY. The meeting adjourned at 7:54 p.m.
TO
..�.�/1VA"AW
�FClerk
CERTIFICATION
I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Executive and Regular
Session held by the Town Council of Fountain Hills on the 16th day of March 2006. I further certify that the meeting
was duly called and that a quorum was present.
DATED this 6"' day of April, 2006.
Bevelyn J. end ,Town Clerk