HomeMy WebLinkAbout2007.0503.TCREM.Minutes TOWN OF FOUNTAIN HILLS
MINUTES OF THE EXECUTIVE AND REGULAR SESSION OF THE
FOUNTAIN HILLS TOWN COUNCIL
May 3,2007
CALL TO ORDER
Mayor Nichols called the meeting to order at 5:30 p.m.
ROLL CALL AND VOTE TO GO INTO EXECUTIVE SESSION
ROLL CALL—Present for roll call were the following members of the Fountain Hills Town Council: Mayor
Nichols, Councilmember Kehe, Councilmember Leger, Vice Mayor McMahan, Councilmember Schlum,
Councilmember Archambault and Councilmember Dickey. Town Attorney Andrew McGuire, Town Manager
Tim Pickering, and Town Clerk Bev Bender were also present.
VOTE TO GO INTO EXECUTIVE SESSION-Pursuant to §38-431.03(A)(4).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, the
FireRock tax litigation); and (ii) Pursuant to §38-431.03(A)(3), For discussion or consultation for legal advice
with the attorney or attorneys of the public body. (Specifically, legal advice regarding access into the
Preserve.)
Councilmember Archambault MOVED to go inter executive session and Vice Mayor McMahan SECONDED
the motion,which CARRIED unanimously.
Councilmember Leger MOVED to adjourn the executive session at 6:28 p.m. and Councilmember Schlum
SECONDED the motion,which CARRIED unanimously(7-0).
RETURN TO REGULAR SESSION
• CALL TO ORDER AND PLEDGE OF ALLEGIANCE
Mayor Nichols called the meeting to order at 6:30 p.m.
• INVOCATION—Reverend Daniel Robling of the Angelican Church of the Atonement.
ROLL CALL—Present for roll call were the following members of the Fountain Hills Town Council: Mayor
Nichols, Councilmember Kehe, Councilmember Leger, Vice Mayor McMahan, Councilmember Schlum,
Councilmember Archambault and Councilmember Dickey. Town Attorney Andrew McGuire, Town Manager
Tim Pickering,and Town Clerk Bev Bender were also present.
• MAYOR'S REPORT
(i) Mayor Nichols will read a proclamation declaring May 2007 as National Neurofibromatosis
Awareness Month.
Mayor Nichols stated that the Children's Tumor Foundation (CTF) was observing May as National
Nisor Neurofibromatosis (NF) Awareness month to inform the public about this common genetic disorder. He noted
that NF was more prevalent than Cystic Fibrosis, Duchenne Muscular Dystrophy and Huntington's Disease
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combined and over 100,000 Americans have NF and one out of every 4,000 newborns would develop the
disorder although NF is relatively unknown to the public. He added that the CTF promotes and supports
research aimed at finding the causes of the disorder and developing treatments and a cure, provided information
to people with NF, informs the people and was a resource for medical and health professionals. He advised that
although researchers had identified the genes that cause NF, much remained to be done to raise awareness and
funding to develop methods of preventions, treatment and a cure. He emphasized that the CTF lead the effort in
this regard and said it was his honor to declare May 2007 as "Neurofibromatosis Awareness Month in the Town
of Fountain Hills."
CALL TO THE PUBLIC
Vincent Marsello, 156467 Serro Alto Drive, addressed the Council relative to the Town's legal counsel and his
advice. He said that he had been a resident of Fountain Hills for nine years and noted that the Town had
experienced a number of lawsuits during the tenure of the current Town Attorney. He stated that he was not
aware of the Town winning any of the lawsuits and expressed the opinion that the Town Attorney should be
asked to resign his position and the Council should engage the services of another law firm. He added that Mr.
Sternfeld, a local attorney, wins cases against the Town on a consistent basis and suggested that they Council
consider hiring him as the Town's legal counsel.
Town Clerk Bev Bender advised that 25 citizens had submitted cards in support of Senior Services but did not
wish to speak but two citizens indicated a desire address the Council regarding this issue.
Gloria Zalig, 16415 N. Palo Verde Lane, addressed the Council and spoke on behalf of the Senior Services of
Fountain Hills, said that residents just learned about this matter yesterday. She expressed concerns regarding the
future of Senior Services and said the residents did not understand "how all of this went down so quickly." She
questioned why Karen and Stephanie had to resign so quickly and asked whether they knew this was coming.
She said that the seniors of Fountain Hills were not very happy about what was happening and they had no vote
to control their fate. She said that if the problem had to do with money that was confusing since the
organization was supposed to be non-profit. She also questioned whether the two part time people were let go to
be replaced by one full-time person and asked the Council to let the seniors know why this was happening.
Joann Prather, 16236 Glenbrook Boulevard, addressed the Council and said that it had come to her attention that
the Town wanted to incorporate the Senior Citizens Center with the Parks Department and questioned why. She
stated that they had an energetic, successful operation under the current directors and added that they had done a
fantastic job and created the best Senior Center in Arizona. She commented on the diverse activities and
seminars offered at the Center and expressed the opinion that by combining the Senior Center and the Parks
Department they might lose the spirit and enthusiasm that had been created by the current directors. She
requested that the Council"keep things the way they are."
Mayor Nichols thanked the speakers for their input.
Mayor Nichols asked Mr. Pickering to find some way to communicate with the Seniors and let them know what
was going on. Mr. Pickering advised that he would follow through on that request.
CONSENT AGENDA
AGENDA ITEM #1 — CONSIDERATION OF APPROVING THE TOWN COUNCIL MEETING
MINUTES FROM APRIL 10 AND 19,2007.
AGENDA ITEM#2 — CONSIDERATION OF APPROVING THE LIQUOR LICENSE APPLICATION
FOR ZOCAL COCINA Y CANTINA (VINCENT CALAMIA),LOCATED AT 13407 N.LA MONTANA
DRIVE,FOUNTAIN HILLS. THIS REQUEST IS FOR A CLASS 12 LIQUOR LICENSE.
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AGENDA ITEM #3 — CONSIDERATION OF APPROVING THE LIQUOR LICENSE APPLICATION
FOR PARKVIEW TAP HOUSE (RANDY D. NATIONS), LOCATED AT 16828 EAST PARKVIEW
AVE.,FOUNTAIN HILLS. THIS REQUEST IS FOR A CLASS 12 LIQUOR LICENSE.
AGENDA ITEM #4 — CONSIDERATION OF APPROVING A CONTRACT WITH HEINFIELD,
MEECH & CO., P.C., CERTIFIED PUBLIC ACCOUNTANTS, IN THE AMOUNT OF $104,612, FOR
AUDITING SERVICES FOR THREE FISCAL YEARS,2007 THROUGH 2009.
AGENDA ITEM#5— CONSIDERATION OF ACCEPTING THE DONATION AND PLACEMENT OF
A SCULPTURE FOR PUBLIC DISPLAY AS RECOMMENDED BY THE CULTURAL ARTS
COUNCIL.
AGENDA ITEM #6 — CONSIDERATION OF APPROVING AN EXPENDITURE OF $35,449.96 TO
REPLACE TREES ON PALISADES, SAGUARO AND SHEA BOULEVARDS DESTROYED BY THE
JULY 2006 STORM.
Councilmember Archambault MOVED to approve the consent agenda items as listed and Councilmember
Leger SECONDED the motion.
A roll call vote was taken with the following results:
Councilmember Kehe Aye
Councilmember Schlum Aye
Councilmember Leger Aye
Councilmember Dickey Aye
Mayor Nichols Aye
Vice Mayor McMahan Aye
(1110, Councilmember Archambault Aye
The motion CARRIED UNANIMOUSLY(7-0).
ACTION AGENDA
AGENDA ITEM #7 — DISCUSSION WITH POSSIBLE DIRECTION TO STAFF REGARDING THE
ESTABLISHMENT OF TEMPORARY OR PERMANENT ACCESS TO THE MCDOWELL
MOUNTAIN PRESERVE.
Parks and Recreation Director Mark Mayer addressed the Council relative to this agenda item and noted that he
had appeared before the Council several months ago to discuss this particular issue. At that time, staff was
given direction to consider some of the items that came out of the December meeting. The first of those items
had to do with issues raised at that meeting relative to whether or not the two accesses under consideration at
that time were in fact involved with the potential for the Army Corps of Engineers 404 Wash Restrictions. The
others were issues associated with a number of legal questions raised regarding the accesses. In the interest of
time, he said he put together a matrix (copy included in the Council's packet and on file in the Office of the
Town Clerk). At that meeting, an additional potential access was also discussed (coming off of Eagle Ridge
Drive(Adero Canyon) and staff was asked to look at this option as well.
Mr. Mayer provided a brief overview of the matrix prepared by staff and said that they had considered an
easement up through the MCO property in the upper northwest corner of the Town. That was eliminated due to
concerns raised by MCO. The second easement that they looked at went through McDowell Mountain property
and that was eliminated as a result of issues raised by the McDowell Mountain Regional Park objecting to that
option. At the time, that left the option of coming in off of the potential Eagle Ridge Drive (referred to in the
past as the access through MCO property in Adero Canyon). An additional access site listed as#4 on the matrix
was referred to as the Reservoir Access, off of Mayan Drive and subsequent to that meeting, option#5, coming
off of Sunridge Canyon at Desert Canyon was brought forward.
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Discussion ensued relative to site availability, neighborhood proximity, health and public safety, legal access, a
resultant matrix score, potential costs and the fact that if the work could be done by the Sonoran Conservancy
Trailblazers, that amount could be significantly reduced, the fact that trailhead costs reflected the establishment
of a parking area and concerns relative to access options#3, #4(access being closed during construction when it
came off of Adero Canyon, dust, traffic, parking area costs) and #5 (traffic, parking area costs, restrooms,
vegetative screening etc.; and the staff's opinion that#5 represented the worse case scenario.
Mr. Mayer referred to maps displayed in the Council Chambers and provided an overview of each one for the
benefit of the Council and public. He noted that the trail consultant,Mr. Smith,described the Eagle Ridge Drive
route (1.52 actual miles with a 255-foot elevation change, which equals a 3.2% grade) as gently rolling hills
with relatively easy construction. The cost to potentially develop that trail (estimated trail construction) would
be $23,000 and the estimated Trailhead cost would be an additional $9,600 that would provide fifteen parking
stalls and access to those parking stalls. This would come to an overall cost of$32,600. Since there were no
neighbors in proximity to this option,no objections were voiced.
Mr. Mayer discussed the Mayan Drive access and said it was 1.48 miles long with a 530-foot elevation change,
which equals a 6.8% grade. Mr. Smith estimated that the cost for this option would be $125,000 for the trail
construction. He described it as very rocky with an extreme slope and hillside terrain (extreme construction).
He added that as indicated in earlier discussions, there was information provided by the attorney representing
the Association that it was their interpretation that this access wasn't permitted. Staff indicated again that there
would be construction for the bituminous parking area at a cost of$9,600, raising the overall cost to $134,600.
A number of emails were received both in favor of and opposition to this proposal.
Mr. Mayer outlined the final option, Sunridge and Desert Canyon Drives (1.55 miles long with a 750-foot
elevation change and a 10.2% grade). Mr. Smith described the terrain as rocky, steep hillside, and difficult
construction. The cost for construction of this trail would be $84,500. Construction of a bituminous parking
area would be an additional $9,600, raising the overall cost to $253,660, which would include $169,160 for
development of that potential park site across the street that would include, at a minimum, a restroom facility at
a cost of$90,000, a parking lot, and other site improvements. The potential parking access for this option was a
topic of discussion at the Homeowners' Association meeting on April 26th and Mr. Mayer said that he included
information in the Council's packets regarding the outcome of that meeting. (The Homeowners' Board was not
in favor of this particular option.)
Mr. Mayer reported that the firm of 011son Associates conducted a review of the information provided to them
on the two sites being looked at at that time and indicated to staff that while the Corps of Engineers 404 Wash
regulations do cover those two particular areas, a clause had been written into the agreement when it was put
into place that stipulated that as long as they were disturbing no more than a half-acre or no more than 300 linear
feet of wash way, they would not be in violation of those rules. He said that the situation was slightly unclear at
this time because the rules had expired and new ones had not been put into place. The consultant's expectation
and most people's belief was that the Corps would come back with rules that were similar to those previously
established. The consultant recommended, if the Council decided to choose one of those two routes, that they
send a courtesy letter to the Corps of Engineers making them aware of the project.
Mr. Mayer noted that staff did not ask 011son Associates to take a look at the access off Sunridge and Desert
Canyon because this option did not involve entering a wash.
Mr. Mayer reported that the Master Plan for the Fountain Hills McDowell Mountain Preserve was drafted and
approved by the McDowell Mountain Preservation Commission in September 2004 and approved by the
Council on September 16, 2004. He referred to a section at the back of the document (Appendix D — Design
Guide for Trail Construction—Special Structures) and said that this section indicates that"Switchback turns are
extremely difficult to build. Trail routes should be planned to avoid areas that would require switchbacks."
Mr. Mayer said that in analyzing the various sites previously discussed, the only one that avoided the potential
for having switchbacks was the route in Adero Canyon off Eagle Ridge Drive.
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Mr. Mayer advised that he indicated under the various risk options the pros and cons as he viewed them and
noted that staff's recommendation(that reflects both Mr. Mayer's opinion and the Fire Chief's opinion) was that
co the access from Eagle Ridge Drive/Adero Canyon be selected as the route for temporary access to the Town's
McDowell Mountain Preserve. He added that the recommendation was based on a number of factors including
slope. He said that there was less legal uncertainty with this route and the estimated cost of providing the access
was $32,600 versus $134,600 for the Mayan Drive and $253,660 for Sunridge and Desert Canyon Drives. This
access does not have a prolonged view of nearby housing and staff had not received any negative comments
from neighbors regarding this option. Lastly, the reduced time an eventual extrication of a victim would take at
this site also made this access preferable.
Mr.Mayer indicated his willingness to respond to questions from the Council.
Councilmember Kehe distributed materials to the members of the Council, Mr. Pickering, and Town Attorney
Andrew McGuire. He indicated his intent was to present a motion and said that the motion would not have been
possible without the cooperation of Jeremy Hall, President of MCO Properties, Inc. and his willingness to meet
at the "eleventh hour" on short notice to join Councilmember Kehe in "thinking outside of the box." He noted
that he was not implying that his motion had the full endorsement of Mr. Hall but Mr. Hall was willing to have
the door opened for discussion. Councilmember Kehe added that approval of the proposed motion would
provide the framework for further discussion. He added that there remained much to do and there were no
guarantees but he believed that people of good will, working together could find a way.
Councilmember Kehe MOVED to establish general access to the Fountain Hills McDowell Mountain Preserve
via a temporary trail beginning in proximity to the existing Eagle Ridge Drive entry to Adero Canyon,
descending easterly across MCO property to reach the westerly water tank access road, then ascending the
power line route north to the Preserve ridge and connecting to the Town's Overlook Trail. The implementation
of the foregoing shall depend solely upon reaching agreement on all issues thereunto pertaining by MCO
Ly Properties,Inc., the Town of Fountain Hills and the Sonoran Conservancy of Fountain Hills.
Vice Mayor McMahan SECONDED the motion.
Councilmember Kehe called upon Mr. Roy Kinsey, the Town's expert on the Mountain Preserve, to offer some
remarks relative to the proposed site, which he recently walked along with Councilmember Kehe and Mr. Hall.
Mr. Kinsey addressed the members of the Council and said that if it had not been for Councilmember Kehe and
the Mayor and their diligence to pursue "out of the box thinking," in cooperation with Jeremy Hall, who was
willing to sit down and talk through this idea, they would not have another option. He added that he believed
that there was now another option to consider, which would eliminate lawsuits and costs.
Mr. Kinsey referred to a map of the Preserve displayed in the Chambers and said that the proposed alternate
route would start at the end of Copperwynd (go right into the jeep trail) and immediately turn east and down the
slope. It would go across the water tank road for about a tenth of a mile and access ascent to the hillside under
the power lines and walk 7/10ths of a mile to the Overlook Trail. He reported that the total length was 1.6 miles
and the maximum elevation change from the very lowest point at the water tank road to the top of the Preserve
was 349 feet. The downhill portion was 3/10ths of a mile and, as reflected in the original plat plan, would
require "nipping across" two of MCO Property's projected home sites. Then, as they come across on the water
tank road, which was owned by MCO, they then follow through the easement that goes up and under the power
lines. The actual pitch was fairly easy; it was 3/10ths of a mile from Copperwynd down to the road, with a
negative slope of .95% and the steep ascent of 6/10ths of a mile is .99% average slope. When they walk from
there all the way to the top, 7/10ths of a mile,the slope was 3 1/2%.
Mr. Kinsey said that the group that would be giving the most was MCO Properties, because they had to be
certain that they could put a trail in areas that would be acceptable to them. He added that they would
regenerate and re-vegetate the trail at the terminus of the temporary aspect. He added that the good things about
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the whole plan include the fact that they would be totally outside of the Adero Canyon route and there was a
possibility, if this were to pass,that during the construction time(after MCO decides to move in and develop the
Canyon), part of that time they would still be able to use the access road because it was so remote from the
general road construction and infrastructure that must occur before the lots could be opened for development.
Mr. Kinsey advised that MCO had expressed their desire, should this option be approved and pursued, to have
the trail built with minimum damage to the properties, and, for that reason, the Sonoran Conservancy said that
they would be happy to build the trail at no cost to the Town and also to re-vegetate it.
Mayor Nichols commented that he assumed the motion made by Councilmember Kehe closes the door on any
possibility of going through Sunridge Canyon and North Heights and asked if this was correct. Councilmember
Kehe confirmed the Mayor's thinking and said his motion would close the door on the other options.
Councilmember Archambault asked whether the Sonoran Conservancy was saying that they would re-vegetate
the trail at their cost and Mr. Kinsey confirmed that fact. He confirmed that an agreement would be developed
with MCO, not the Town, to develop the trail. He said that the Sonoran Conservancy would be happy to
participate in such an endeavor. Councilmember Archambault said that he held Mr. Kinsey in high regard but
added that a lot of assumptions were being made so he was simply trying to clarify the matter because the Town
had over $200,000 invested in design plans for the trailhead at the end of Adero Canyon (Eagle Ridge Drive as
far as the plats were concerned right now). He added that he was hearing that the Conservancy was willing to
build the trail and re-vegetate it all at no cost to the Town.
Mr. Kinsey said that was correct and explained that so far the Conservancy had built 4.8 miles of trail and in
doing so the trails they had previously built were even more difficult than this would be in terms of either
construction or distance. He added that as far as re-vegetation, since this was undeveloped land,the necessity to
re-vegetate would be simply to ensure that there was plenty of cholla where the trail used to be.
Councilmember Archambault stated that there is always cholla everywhere but his concern is that they would be Nor)
taking on the responsibility and therefore leaving the Town out of it.
Mr. Kinsey responded that they do not plan to leave the Town out of it. There is a very important point here --
sitting down to work out the details of the plan requires Town staff, MCO staff and the Sonoran Conservancy.
They would all be working together but as far as the cost to the Town,the Conservancy would take care of that.
Councilmember Archambault commented that he was a little uncomfortable with the proposal because staff had
not had an opportunity to study it. Mr. Kinsey advised that this would all happen after the fact if the Council
decided to look at this option. Councilmember Archambault noted that the Town had spent approximately
$11,000 from August until now between consultants and viewing the sites to get to this point this evening and
make some kind of a decision. He said that now that would have to forego that for the time being and possibly
forego citizens having access for a while longer.
Mr. Kinsey suggested that if the Town had already spent$11,000 and was proposing to spend another$32,000,
which then would get totally buried when they put the road over it, they had lost that and would lose eighteen
months of time. He said that no one could access the Preserve and although there might be a penalty for the
Town in the fact that monies had already been spent on studies, the studies showed the three suggestions,
including the Adero Canyon one that opened the door to legal action. He stressed the importance of avoiding
additional lawsuits. Councilmember Archambault said that he had not heard about any lawsuits associated with
that option and Mr. Kinsey advised that this was a prediction on his part and he was fearful of such an
occurrence.
Councilmember Archambault stated that the members of the Council get elected to make decisions and now
they were in his territory and he was saying that he was uncomfortable because all of a sudden they were
throwing in another caveat, which he believed was outside of Council conduct because a motion had been made
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for something that the rest of the Council had never even had a chance to consider. He added that typically, in
accordance with the law, they were not allowed to add anything to an agenda after Monday. He said that the
Council was being taken by surprise and this occurrence brought back memories he would rather forget.
Mr. Kinsey advised that he could appreciate Councilmember Archambault's point and acknowledged the
importance of abiding by Town regulations. He added that he was here to offer his help and said that the whole
plan came about because there did not seem to be a solution or a really legitimate choice for the Council to
consider. It evolved through discussions among Councilmember Kehe, Mr. Hall and himself as far back as last
Friday.
Councilmember Archambault commented that they still don't know whether they had a deal and Mr. Kinsey
agreed and said they would not know until they took a look at it in an effort to determine whether there could be
a deal—it was not a done deal.
Councilmember Archambault stated that he appreciates all of the effort that everyone had put into this but noted
that it came before the Council at the 1 lth hour. He said that he would like to hear from the other members of
the Council on this issue.
Councilmember Schlum thanked Mr. Kinsey and Councilmember Kehe for their efforts to solve an important
issue facing the Town. He said that with respect to Councilmember Archambault's remarks, he approached this
meeting with an open mind and based on the wording of this agenda item, he did not feel that the discussion was
out of line. He added that it gave the Council more ability to keep their minds open and look at things. He
stated that much had happened recently in talking about access and now they had another option to look at and
he thought that was great. He noted that they expected to access the Preserve much sooner and build the
trailhead that had already been designed at a significant cost. This option would not allow them to build a
trailhead but it would provide access via another route to the Preserve property. He asked Mr. Kinsey where the
Town Preserve began and the MCO property ended.
Mr. Kinsey referred to the map and responded to Councilmember Schlum's inquiry. He explained that there
would be a total of three lots that would have to be crossed (two on the downside and one on the upside). He
added that the Preserve land begins at the top of the ridge.
Councilmember Schlum reiterated that the Council was seeing this option for the first time and added that he
would have to review the motion again to ensure that it was not setting out marching orders that were too
specific at this point in time.
Councilmember Leger stated the opinion that the motion was not out of order and said that it was simply a
motion for the Council to consider and discuss. He added that when they go back to the original Work Session
some time ago, the purpose of that was to explore options and that is what they did. Staff did a tremendous job,
due diligence had been done and they had looked at the legal and practical sides of the issue as well as the costs.
He agreed that it had cost them money but said that was the cost of doing business and making the right
decision. He expressed the opinion that this was a move in the right direction and added that after reviewing the
Staff Report, he was not really comfortable with any of the three options currently on the table. He knew that
Council had set a goal for early access to the Preserve and he believed they have a fiduciary responsibility to the
citizens of the Town who unanimously voted to purchase that property for the purpose of the Preserve. He said
that he believed this alternative had some potential and he did not have an issue with taking more time in order
to do it right the first time.
Councilmember Leger noted that Mr. Kinsey pointed out some things that had always concerned him, such as
the entrance to Adero Canyon and the fact that all of that would be bulldozed and they would be out in left field
for 18 months or so. He added that Councilmember Schlum made reference to the motion and said that he had
L., reviewed it and would be comfortable in amending the motion. The current motion states clearly, "MOVE to
establish..." He said he agreed with Councilmember Archambault that it was very difficult to agree to a motion
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when they had not had an opportunity to really look at the facts. He suggested that they amend the motion to
state instead, "MOVE to explore..." because they obviously needed to sit down and explore this option and get
all of the parties involved. He added that this was the closest proposal he had seen that he believed was perhaps
mutually beneficial to the stakeholders,including MCO.
Councilmember Leger MOVED to amend the motion to state, "MOVE to explore..." rather than "MOVE to
establish... Councilmember Archambault SECONDED the motion.
The motion CARRIED UNANIMOUSLY(7-0).
Councilmember Dickey said that she too liked to prepare before voting on an item and this was the first time she
had heard this proposal. She added that changing to motion to state "to explore" made the proposal easier to
agree to. She stated the opinion that there should be a time limit placed on this because "explore" could mean
two weeks, eighteen months, etc. She said that she was not ready to give up on the Adero Canyon option and
noted that it was in the Town's General Plan and had always been the intent. It was the Town's property and
having that become access to the Preserve was the intention at the time. She said that at the next meeting or the
meeting after, she would like a deadline placed on the motion to "explore" this alternative. She recommended
that the deadline date be by the first Council meeting in June.
Councilmember Dickey MOVED to place a deadline date on the exploration of the new alternative by the Town
and the Sonoran Conservancy and said that a recommendation should be presented to the Council no later than
the first Council meeting in June. Councilmember Schlum SECONDED the motion.
Councilmember Kehe asked Councilmember Dickey whether she would include in her motion the fact that
meetings between the stakeholders would initiate more promptly than before the lst of June. He asked whether
they could "meet" with the stakeholders leading up the 1st of June deadline. He said that a lot could be
accomplished between now and then.
Councilmember Schlum stated that he knew what Councilmember Dickey was trying to say and clarified that
the deadline date was the date that a recommendation should be brought from staff and the Sonoran
Conservancy for the Council's consideration. Councilmember Dickey indicated concurrence with the
clarification.
Councilmember Leger said that he appreciated Councilmember Dickey's sensitivity to a time line and agreed
that it represented an excellent addition to the motion. He added that as they go down this path, it was his
understanding that this did not eliminate the Adero Canyon option. He added that at this point he believed they
were eliminating the Mayan access as well as the Sunridge Canyon access. He said that he believed this was a
variation on the theme of the whole Adero Canyon scenario and they would have to cross that bridge when they
got to it if whatever was brought forth was not acceptable to the Council. He added that in the long term, they
were still planning the original track through that development per the Development Agreement.Mayor Nichols
concurred with Councilmember Leger's summation.
Mayor Nichols stated that the public should understand that the Council, through this amendment, had really
said that they were going to give up doing anything in Sunridge Canyon and North Heights (Mayan Drive). The
Council did not want to pit neighbors against one another and so they would eliminate those two alternatives and
the current proposal presented an opportunity to work with MCO to see if they could find a common ground to
make the whole thing fit in with the Town's General Plan. He stressed the importance of trying to find common
ground on this issue and avoid confrontation. He said that he supported the motion. Vice Mayor McMahan
asked whether he could make a motion that would"sum it all up."
Mayor Nichols explained that the Council must first vote on the current motion. ,41)
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Councilmember Dickey asked if a different route was taken would the Sonoran Conservancy still help with the
path.
(kw
Mr. Kinsey responded that the Conservancy existed as a non-profit organization to help the Town of Fountain
Hills, and that included whatever they might do in terms of the development of the Preserve, conducting guided
hikes, etc. Those things would continue on and the public must realize that the number of people, who would
use that access to the Preserve, if there was a temporary access, could probably be counted on one hand a week.
Not a lot of people were going to rush up there and walk on their own but this way they could do it on their own
schedule instead of meeting the Conservancy's schedule of 7:30 in the morning. He added that because there
was not going to be that heavy traffic, the Town would not have to worry about spending money on parking
facilities.
Mayor Nichols noted that the amendment was to have final recommendations presented to the Council by their
first meeting in June and called for a vote on that amendment.
The motion CARRIED UNANIMOUSLY(7-0).
Mayor Nichols stated that at this point he would like to hear from any members of the public who would like to
speak on this issue.
Shawn Hurwitz, 1330 Post Oak, Houston, Texas, President/CEO of MAXXAM Inc./MCO Properties addressed
the Council and thanked them and Mr. Kinsey for what he believed to be a very productive discussion. He
apologized for Jeremy Hall's absence and explained that had Mr. Hall known prior to Monday that this issue
would be discussed today, he would have cancelled his business plans to be here. He said that before presenting
his remarks,he would like to emphasize that in no way should his remarks be taken as a reflection on Town staff
other than its senior management. He added that in fact he and his office believed that Town staff was
Lie comprised of professional and dedicated people who carried out their jobs very well. He said that he cancelled
two days of meetings in Houston and Austin and spent all day traveling to be at the meeting this evening. He
stated that he was there out of complete and utter frustration resulting from the way that the Town had handled
this matter. He had spent the better part of the last two years being very publicly quiet about any issues that they
might have had with the Town and behind the scene he had reached out with "olive branch after olive branch"
initiating contact to have better relations only to have what follows occur. He expressed the opinion that it was
in the Town's best interest that someone speak up at this point in time because he doubted that the Town
Council would condone the tactics of its senior executive staff if they knew what was occurring.
Mr. Hurwitz informed the Council that on December 12, 2006, Jeremy Hall was invited to participate in a Work
Study group for the purpose of discussing possible alternatives for access to the Preserve. He attended,prepared
to answer questions about Adero Canyon and Eagles Nest and to discuss any and all proposals the Town staff
wanted to discuss. Today is May 3, 2007, nearly five months since the Work Study Session, and during that
time the grand total of the number of times anyone from staff has contacted Jeremy or him about the proposal
that staff recommended to the Council tonight was zero. The first we heard of this was from Councilmember
Kehe, who had the courtesy to come by and see Jeremy a few days ago. The next communication they had
about the matter came via The Fountain Hills Times yesterday. They do have concerns about what was being
proposed tonight and those concerns had been provided to the Town. However, after not hearing from the Town
for nearly five months,they thought that an alternative solution was being worked on. He said that he wanted to
be very clear—they were open to discussion,they wanted discussion. They thought that December 12th was the
beginning of a dialogue and, in fact, they were told that the Town would get back to them for further discussion
shortly after December 12`h. What they were not open to, however, was "railroading" and that was what
occurred when staff makes a recommendation to the Council that affects MCO's property when the grand total
number of discussions between the Town and MCO since December 12th regarding environmental concerns was
zero. Mr. Hurwitz added that"railroading" was when staff presents recommendations to the Council that affect
MCO's property when the grand total number of discussions regarding health and safety issues was zero.
"Railroading" was when staff makes recommendations to Council that affects MCO's property when the grand
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total of the number of discussions between the Town and MCO since December 12th on fire suppression was
zero. And"railroading" was when staff makes a recommendation to Council that affects MCO's property when
the grand total number of discussions between the Town and MCO since December 12th on legal issues was one,
and that was yesterday.
Mr. Hurwitz stated that because in the past they had always taken the high road,he believed that in the end some
were conditioned to believe that they would not show up tonight for fear of being on the losing side of a PR
battle they would not want to take on. The idea might have been to spend five months talking to everyone but
MCO, determining the only real option was to go through Adero, to put it on the agenda without telling MCO,
push it through, and MCO's only option would be a lawsuit that the citizens of Fountain Hills would find
distasteful. He said that he found that irresponsible and distasteful and he believed that the citizens of Fountain
Hills and the members of the Council would too. Unfortunately, this was only one instance in a long pattern of
behavior but since the other issues were not relevant to tonight's meeting, he said he would not discuss them
now but said he would be happy to discuss them at a future time if the Council so desired.
Mr. Hurwitz apologized for having to speak publicly on this matter and said that he was also sorry that he had
had to travel so far and cancel two days' of meetings but he determined that the Council might not know what
was going on and he refused to have MCO's reputation further damaged by remaining publicly quiet.
Mayor Nichols thanked Mr. Hurwitz for his comments and Mr. Hurwitz indicated his willingness to respond to
any questions.
Councilmember Kehe said that he would like to respond in part to Mr. Hurwitz's comments. MCO made it
clear from the beginning that they did not support the Adero Canyon access and to the credit of the Town, that
was why the Town decided to look elsewhere. He said that he personally spoke with Mr. Hall and visited sites
with him since December and had conversations with him throughout that time. He said that it was not quite
correct to say that MCO was not aware of the issues.
Mr. Hurwitz commented that when he said they were unaware, they were unaware that there were other
discussions going on and they were at the point where they would have been happy to discuss anything. It was
their belief that because those discussions were taking place, and MCO had not been contacted to talk about the
particular option that was presented this evening, that this was not being looked at but then all of a sudden it
turns up on a Town Council agenda with a staff recommendation. That was what he meant. They certainly
were aware of the fact that discussions were occurring regarding other alternatives, and reiterated that this
evening's discussion was the most productive one he has heard. He said he appreciated the fact that the Council
believed there should be discussions with MCO;he just wished they had taken place over the last five months.
Town Clerk Bev Bender advised that 18 speaker cards were submitted by citizens that did not wish to speak but
who wanted to express their opposition to either the Mayan or Sunridge access options.
Phil Gaziano, 14946 E. Sierra Madre Drive, said that he was very happy with the Council's decision and
thanked them for eliminating the Mayan access from further consideration. He stressed the importance of
coming to a meeting of the minds with MCO.
Steve Davis, 16230 E. Stancrest, stated that he trusted that the Council would make the right decision regarding
this important issue. He stressed the importance of obtaining permanent access (multiple access points) to the
Preserve. He stressed the importance of keeping the public informed of the status of this issue and also stressed
the importance of working with the developers, and not put hikers and users of the Preserve in conflict with
homeowners.
Sharon Hutcheson, 16027 Tumbleweed, addressed the Council and said that she had served on the Council when
the settlement agreement was negotiated and compromised and it was never the "spirit" or the "intention"of the ,440
agreement to provide public access through Adero Canyon until MCO developed the road, which was a
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condition. She said that the Council at that time had feared that MCO may start to develop the beginning of the
road and not continue. So that was a condition and when met, the public would have access. It didn't work out
that way because at the time everyone thought that Adero Canyon would be the first development built but the
next Council failed to provide a Community Facilities District (CFD), which was necessary for MCO to move
formally with the development so instead they moved formally with Eagles Nest. She stated that she had never
been an advocate of MCO and was probably one of their biggest adversaries in the Town but she would stand up
for what was right and the intention of that agreement was exactly what she said and the reason they did not
have public access through Adero Canyon now was because the Council at the time (the new Council) did not
approve the CFD.
Sharon Morgan, 15084 E. Mustang, addressed the Council and stressed the importance of not getting into a
lawsuit with the developer.
Doug DeLong, 13225 N. Eagle Ridge Drive, representing the Copperwynd Resort, said that he just found out
about this issue today. He said that they do have hikers who come off of Eagle Ridge Drive now and sometimes
there were problems with many vehicles and getting access to the property. On numerous occasions, people
who had come off the trail had come in to use the washrooms and had pets and they were provided with bowls,
etc. because the resort wanted to be a good neighbor. He added that in making this a trailhead they must
consider whether additional congestion would be created. He knows they had talked about having 15 parking
spots, but questioned whether that would be sufficient. He noted that on weekends and even coming down to
the meeting this evening, there were four cars parked there.
Jerry Cain, 15002 E. Toluca Circle, expressed appreciation to Councilmember Kehe and to Mr. Hurwitz for
bringing this important issue formally.
Bruce Tominello, 16208 N. Sunridge Drive, addressed the Council and thanked Councilmember Kehe and Roy
Kinsey for having the courage, the foresight and simple welfare of the people of Fountain Hills on their minds
when they chose to sit down together and think outside the box. He said that they needed more of that in the
Town of Fountain Hills. He added that Mr. Hurwitz raised some disturbing issues that dovetailed into some
earlier conversations and expressed the opinion that his comments needed to be looked into. He looked to the
Chief Executive of any organization to set the tone and the Mayor of Fountain Hills occupies that position. He
requested that the Mayor ascertain whether he was spending enough time monitoring what the senior staff was
doing.
Dr. J.C. Johns, 13445 N. Rockview Court, President of the Sunridge Canyon Homeowners' Association,
addressed the Council and stated that the Board of Directors of the Sunridge Canyon Community Association
wished to express their appreciation to Councilmember Kehe for the process by which the request for an
easement to gain access to the McDowell Mountain Preserve hiking trails from a proposed trailhead at the
corner of Sunridge and Desert Canyon Drive was presented to the Sunridge Board of Directors for their
consideration. Before any action was taken by the Council and following an introductory meeting with Mr.
Pickering and the Town, Mr. Kehe presented the request to the residents of their neighborhoods, all of whom
would be affected by the proposed trailhead. He answered questions and addressed concerns presented by the
residents. The Board was also appreciative for the efforts of Mayor Nichols in stating to this President that the
Town would not establish a trailhead where it was not supported by the neighborhood. He noted that the Board
of Directors voted not to grant the easement to the Town of Fountain Hills through the proposed trailhead. After
hearing the proposals presented this evening, they wanted the Council to know that they do support their
elimination of Mayan Drive as an option and also they request that they formally enter a motion eliminating
both the Sunridge Canyon and the Mayan Drive easements from consideration.
There were no additional citizens wishing to speak and Mayor Nichols thanked all of the speakers for their
Loy input.
Mayor Nichols advised that there is a motion on the floor and called for a vote.
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The motion CARRIED UNANIMOUSLY(7-0).
Councilmember Archambault MOVED that the Council abandon Mayan Drive and Sunridge Canyon Drive as
access routes into the Preserve. Vice Mayor McMahan SECONDED the motion, which CARRIED
UNANIMOUSLY(7-0).
AGENDA ITEM#8—PUBLIC HEARING OF SPECIAL USE PERMITS FOR FIREROCK PLAZA TO
ALLOW "COFFEE PLANTATION," TO PROVIDE DRIVE-THRU WINDOW SERVICE TO
CUSTOMERS; TO HAVE EXTENDED HOURS OF OPERATION; AND TO HAVE AN OUTDOOR
PATIO/DINING AREA; AKA REPLAT 704, BLOCK 6, LOT 6. CASE NUMBERS SU207-04, SU2007-
05 AND SU2007-06.
Mayor Nichols declared the public hearing open at 7:55 p.m.
Senior Planner Bob Rodgers addressed the Council relative to this agenda item and stated that Coffee Plantation
was proposing to occupy Unit#1 on the southern end of Firerock Plaza. Unit#1 contains 1,486 square feet and
Coffee Plantation was a franchise business that primarily serves coffee and other light refreshments. They
currently have eight Valley locations and the closest one was in Scottsdale. They operate in a similar manner to
Starbucks with the main difference being that Coffee Plantation also serves a gelato, which they make on site.
The concept plan was approved by the Planning and Zoning Commission on April 12,2007 and the Commission
also voted to forMayer recommendations to approve the related Special Use Permits. The Council was being
asked to approve three Special Use Permits for this project to allow a drive-thru window, to permit the creation
of an outdoor seating area and to permit extended hours of operation to begin at 6:00 a.m.
The site is located on the south side of Shea Boulevard, east of Serious Wash and west of Kern Plaza. It backed
up to Firebrick Drive and single-family residences are across Firebrick Drive where the zoning is R1-43. The
subject property is zoned C-1. The Plaza and building were approved in 2006 and were currently under
construction. He referred to slides depicting the proposed uses and site plan. The Zoning Ordinance only NINO
allowed the operation of commercial activities in the C-1 Zoning District between the hours of 7:00 a.m. and
11:00 p.m. unless the Town Council specifically grants a Special Use Permit for extended hours of operation.
This application was requesting that they be allowed to open their doors as early as 6:00 a.m. to catch the
morning rush hour traffic. Staff recommended approval of Special Use Permit SU07-04 for the drive-thru
service, SU07-05 to allow the requested extended hours of operation and SU07-06 to allow an outdoor
patio/dining area subject to the stipulations contained in the Concept Plan as outlined in the Staff Reports
(copies on file in the Office of the Town Clerk).
There were no citizens wishing to speak on this agenda item.
Mayor Nichols declared the public hearing closed at 8:03 p.m.
AGENDA ITEM#9—CONSIDERATION OF A SPECIAL USE PERMIT FOR FIREROCK PLAZA TO
ALLOW "COFFEE PLANTATION" TO PROVIDE DRIVE-THRU WINDOW SERVICE TO
CUSTOMERS,AKA REPLAT 704,BLOCK 6,LOT 6, CASE#2007-04.
Councilmember Leger MOVED to approve the Special Use Permit for the drive-thru window, Case #2007-04
and Vice Mayor McMahan SECONDED the motion.
In response to a question from Councilmember Schlum, Mr. Rodgers explained that the general traffic flow
would come in the entrance, go around the building, and go through the drive-thru. Councilmember Schlum
commented that there was one new home that might be impacted by the cars pulling around(between the condos
and the site) and lighting. Mr. Rodgers discussed the large amount of landscaping and a five-foot wall that was
being required in order to buffer the property. Councilmember Schlum stressed the importance of ensuring that
the neighbor was not impacted.
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Councilmember Leger posed questions regarding the proposed wall and stated the opinion that the wall and the
landscaping would serve in combination to screen out the lights and Mr. Rodgers concurred.
(lbw
The motion CARRIED UNANIMOUSLY(7-0).
AGENDA ITEM #10 — CONSIDERATION OF A SPECIAL USE PERMIT FOR FIREROCK PLAZA
TO ALLOW "COFFEE PLANTATION" TO HAVE EXTENDED HOURS OF OPERATION, AKA
REPLAT 704,BLOCK 6,LOT 6, CASE#2007-05.
Councilmember McMahan MOVED to approve the Special Use Permit for the extended hours of operation,
Case#07-05 and Councilmember Leger SECONDED the motion.
In response to a question from Councilmember Schlum, the architect for the project showed the location of the
drive-thru speakers.Mr. Rodgers also confirmed that all signage would conform to the ordinance.
The motion CARRIED UNANIMOUSLY(7-0).
AGENDA ITEM #11 — CONSIDERATION OF A SPECIAL USE PERMIT FOR FIREROCK PLAZA
TO ALLOW "COFFEE PLANTATION" TO HAVE AN OUTDOOR PATIO/DINING AREA, AKA
REPLAT 704,BLOCK 6,LOT 6, CASE#2007-06.
Vice Mayor McMahan MOVED to approve the Special Use Permit for an outdoor patio/dining area, Case#07-
06 and Councilmember Schlum SECONDED the motion. The motion CARRIED UNANIMOUSLY(7-0).
AGENDA ITEM #12 — CONSIDERATION OF APPROVING THE SECOND AMENDMENT AND
RESTATED LICENSE AGREEMENT WITH COXCOM,INC.DATED MAY 1,2007.
(toe
Mr. Pickering advised that he and the Town Attorney had held discussions with Cox Communications, the
Town's cable provider, over the last two to three years. As the Legislature last year changed the law redefining
what towns could charge cable operators for franchise agreements, there were no more disagreements regarding
this franchise. Staff has made minor adjustments to the existing licensing agreement and was proposing to
extend this license for six years. Cox was keeping the license fee at five percent. Mr. Pickering said that there
were some positive and some negative aspects for the Town. The negative was the redefinition of revenue, but
they really could not do much about that because it had been defined by the Legislature and the positives
included the upgrading of the system if any other cities in the Phoenix area were upgraded and the fact that Cox
would provide commercial extensions if six or more businesses signed up for cable services within a one-quarter
mile area(the running of the line would be free of charge).
Discussion ensued relative to the fact that the office was originally slated to close and the agreement now calls
for the office to remain open for operation four hours a day, two days a week, staffed with one customer service
representative; Councilmember Leger's question as to whether it would be better to keep the office open one
day a week during the same time frame to ensure that the office was better utilized and therefore remained open;
input from Cox representative Michael Stull relative to the fact that the company was changing over to a system
that would hopefully eliminate set-top boxes and so there would no longer be a need to take those boxes to a
store and the fact that actual traffic would have to decrease by 90% before the store would go away and with the
number of people coming into the store to pay their bills,that was unlikely to occur.
Mayor Nichols commented that it appeared that Cox Communications needed help in the customer service area
with their representatives who deal with the citizens. Their attitude had been"we'll do it when we want to do it"
and stressed the importance of a drastic improvement in this important area. He said that many people in Town
would switch to another provider if that option was available.
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Mr. Stull assured the Council that all reported complaints would be researched by him and resolved in an effort
to improve customer service. He said that as many businesses had to do, the company had cut back on its
contractors but added that hopefully the company was getting back to their core employees and he believed this
would address that issue. He said that phone issues were ongoing but if he was provided copies of complaints
he would personally follow up on the issues in an effort to resolve them.
Additional discussion ensued relative to the fact that the Town recently annexed land, which would result in an
increase in business in the not too distant future; government charges contained in Article 7 of the agreement,
the use of the right-of-way charges and the reimbursement for certain expenses that could cut down what has
been agreed upon as a percentage; the fact that because they were entering into a renewal agreement rather than
an initial contract, they were able to phase in the fees over a period of time,the fact that the first$20,000 will be
paid by Cox each year and outside of the license fee, everything over $20,000 will be deducted as part of the
license fee and the fact that the average permit payment by Cox per year had been running about $13,000, well
above the threshold.
Mr. McGuire, responding to a question from Councilmember Leger relative to Article 7.1(D), stated that a battle
between cable companies and communities had long been waged over two items, the license fee driven through
the license agreements that were granted and in transaction privilege taxes that were charged to the cable
companies. In the early days both were charged and cable companies were paying 5% plus whatever the
transaction privilege tax was so their effective tax rate was somewhere in the range of 7.5%. Following
legislation, the cable companies were able to eliminate the "double hit" and have any transaction privilege tax
collected offset against the license fee so that the total amount that can be charged is 5% (Federal law). He
added that because of that,there was now an offset against the fee of any transaction privilege tax charged.
Mayor Nichols called for a motion on this agenda item.
Councilmember Leger MOVED to approve the second amendment and restated license agreement with
Coxcom, dated May 1, 2007 and Councilmember Archambault SECONDED the motion, which CARRIED
UNANIMOUSLY(7-0).
AGENDA ITEM #13 —DISCUSSION WITH POSSIBLE DIRECTION TO STAFF REGARDING THE
FIREROCK TAX LITIGATION.
Councilmember Leger MOVED that the Council authorize the Town Manager to proceed as recommended in
Executive Session and Councilmember Archambault SECONDED the motion, which CARRIED
UNANIMOUSLY(7-0).
AGENDA ITEM#14—SUMMARY OF COUNCIL REQUESTS BY TOWN MANAGER.
Councilmember Kehe stated that as result of the Council's motion that was amended and he voted to accept, he
would like the Mayor to direct the Town Manager to move forward to establish meetings with MCO as early as
possible.
Mayor Nichols said that this item related to Agenda Item#15 and requested that the Town Manager follow up
on this issue as requested by Councilmember Kehe. The Mayor also asked Mr. Pickering to get back to the
Seniors relative to their concerns.
Councilmember Dickey announced that tomorrow there would be a high pollution advisory for particulates and
a watch for ozone. She requested that citizens car pool and/or do whatever they could to mitigate this situation.
Mayor Nichols asked where information such as advisories could be obtained on a daily basis and
Councilmember Dickey advised that citizens could go to the www.azdeq.gov website for that information.
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Councilmember Dickey added that one of the Council's goals was to work with the schools and noted that on
Thursday, May 10th, staff from her agency (DEQ Water) would be in Town for the School District's Family
Lkimy Science Night at Four Peaks. She noted that there would be hands-on activities for students and encouraged
attendance at this event.
AGENDA ITEM #15 - 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) DIRECTING STAFF TO CONDUCT FURTHER
RESEARCH AND REPORT BACK TO THE COUNCIL:
A. NONE
AGENDA ITEM#16-ADJOURNMENT.
Vice Mayor McMahan MOVED that the Council adjourn and Councilmember Leger SECONDED the motion,
which CARRIED UNANIMOUSLY(7-0). The meeting adjourned at 8:30 p.m.
TOWN OF FOUNTAI ILLS
0.
ga /
By - .
Wally Ni hols,Ma .
ATTEST AND
PREPARED BY:
Bevelyn J. nd ,Town Clerk
CERTIFICATION
I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the Regular Session held
by the Town Council of Fountain Hills on the 3rd day of May 2007. I further certify that the meeting was duly
called and that a quorum was present.
DATED this 17th day of May 2007.
Bevelyn Ben er,Town Clerk
-Le
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