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HomeMy WebLinkAbout2007.0816.TCREM.Minutes TOWN OF FOUNTAIN HILLS MINUTES OF THE EXECUTIVE AND REGULAR SESSION OF THE FOUNTAIN HILLS TOWN COUNCIL August 16,2007 CALL TO ORDER Mayor Nichols called the meeting to order at 5:35 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. VOTE TO GO INTO EXECUTIVE SESSION - Pursuant to §38-431.03(A)(1), for discussion of employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation of a public officer. An 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, for the purpose of (i) reviewing applications received for consideration for the vacancies on the Planning and Zoning Commission, and (ii) interviewing the Parks and Recreation Commission applicant.) Councilmember Schlum MOVED to convene the Executive Session and Councilmember Archambault SECONDED the motion, which CARRIED UNANIMOUSLY(7-0). Councilmember Leger MOVED to adjourn the Executive Session and Vice Mayor McMahan SECONDED the motion, which CARRIED UNANIMOUSLY(7-0). The meeting adjourned at 5:55 p.m. RETURN TO REGULAR SESSION • CALL TO ORDER AND PLEDGE OF ALLEGIANCE Mayor Nichols called the meeting to order at 6:30 p.m. • INVOCATION — Pastor Larry Finch, Four Peaks Community Church was not present. Councilmember Schlum provided the invocation. 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) None L z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 1 of 15 SCHEDULED PUBLIC APPEARANCES/PRESENTATIONS (i) Legislative update by Congressman Harry E.Mitchell. Mayor Nichols said that he was proud and honored to welcome Congressman Harry Mitchell to the meeting this evening and stated that the Congressman would provide a brief overview of issues taking place in Washington, D.C. that affect the Town of Fountain Hills. Congressman Mitchell thanked the Council for the opportunity to address them and the citizens of Fountain Hills this evening; he commended the citizens for their attendance at the meeting. He stressed the importance of citizen involvement in government. Congressman Mitchell reported that sweeping ethics reform measures had been passed with a bi-partisan approach as well as recommendations regarding the 911 Commission. They also passed proposals to invest in renewable sources of energy so that they can become energy independent. He commented on the fact that the minimum wage was recently increased and noted that this was the first time in ten years that had happened. He emphasized the importance of working in a bi-partisan way to help cities and towns like Fountain Hills and said that partisanship must be put aside and Arizona must come first. He noted that once a month, all of the members of the Arizona delegation got together for breakfast to discuss issues that deal with Arizona. Congressman Mitchell discussed a variety of issues and bills that would ultimately affect Arizona and the Town of Fountain Hills and again thanked the Council and the citizens for the opportunity to address them this evening. Mayor Nichols presented Congressman Mitchell with a Fountain Hills pin and pen and thanked him for his efforts on behalf of Arizona and the Town of Fountain Hills. Mayor Nichols requested that Town Attorney Andrew McGuire provide a brief summary of the rules of decorum to be followed at the Council meeting for the benefit of those in attendance who might wish to participate in the meeting this evening and Mr. McGuire complied with the Mayor's request. CALL TO THE PUBLIC There were no citizens wishing to speak at this time. CONSENT AGENDA AGENDA ITEM #1 — CONSIDERATION OF APPROVING THE TOWN COUNCIL MEETING MINUTES OF AUGUST 2,2007. AGENDA ITEM#2 — CONSIDERATION OF RESOLUTION 2007-44, ABANDONING WHATEVER RIGHT, TITLE OR INTEREST THE TOWN HAS IN PORTIONS OF THE CERTAIN PUBLIC UTILITY AND DRAINAGE EASEMENTS LOCATED AT THE WESTERLY PROPERTY LINE OF PLAT 431, BLOCK 7, LOT 7 (15225 ESCALANTE DRIVE) AS RECORDED IN BOOK 151 OF MAPS, PAGE 43,RECORDS OF MARICOPA COUNTY,ARIZONA. EA07-17 (PICKEL). AGENDA ITEM #3 — CONSIDERATION OF APPROVING RESOLUTION 2007-40, A PUBLIC UTILITY EASEMENT WITH SRP ALONG TOWER DRIVE AT DESERT VISTA NEIGHBORHOOD PARK. AGENDA ITEM#4— CONSIDERATION OF APPROVING A CHANGE ORDER IN THE AMOUNT OF $38,500 WITH INFINITY ELECTRIC TO PROVIDE ELECTRICAL POWER TO DESERT VISTA NEIGHBORHOOD PARK. z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 2 of 15 AGENDA ITEM #5 — CONSIDERATION OF A REPLAT OF PLAT 706, BLOCK 1, LOTS 3, 4 AND 5, Lir LOCATED AT 17100 E. SHEA BOULEVARD, AKA REDROCK BUSINESS PLAZA. (CASE #S2007- lQ AGENDA ITEM #6 — CONSIDERATION OF APPROVING A ONE-YEAR CONTRACT FOR STREET MAINTENANCE WITH SOUTHWEST SLURRY SEAL, INC, UTILIZING THE CITY OF CHANDLER'S CONTRACT. Councilmember Archambault MOVED to approve the Consent Agenda as listed and Councilmember Leger SECONDED the motion. A roll call vote was taken with the following results: Councilmember Dickey Aye Mayor Nichols Aye Councilmember Leger Aye Councilmember Schlum Aye Councilmember Kehe Aye Vice Mayor McMahan Aye Councilmember Archambault Aye The motion CARRIED UNANIMOUSLY(7-0). REGULAR AGENDA AGENDA ITEM #7 — CONSIDERATION OF APPOINTING ONE CITIZEN TO THE PARKS AND RECREATION COMMISSION. Mayor Nichols MOVED to appoint Karyn Brown to fill the vacant position on the Parks and Recreation Commission for a two-year term and Councilmember Leger SECONDED the motion, which CARRIED UNANIMOUSLY(7-0). AGENDA ITEM #8 — CONSIDERATION OF ACCEPTING FOUR DONATED PIECES OF ART AS RECOMMENDED BY THE FOUNTAIN HILLS CULTURAL COUNCIL FOR PLACEMENT IN THE COMMUNITY. Director of Parks and Recreation Mark Mayer addressed the Council relative to this agenda item and said it was his pleasure to bring forth the recommendations of the Cultural Council for the potential acceptance and placement of four additional pieces of art in Fountain Hills. He noted that the Council's packets contained pictures of the four pieces and added that the combined value of the art pieces was over $175,000. Three of the pieces were proposed to be placed in the courtyard area adjacent to the Community Center and the fourth piece would be placed near the Rotary Centennial Splash Park (at Fountain Park). The cost to the Town would be approximately $2,000 for placement and the annual insurance premium for all four pieces would be less than $750.00. He said that staff recommended approval of the proposal and added that if approved, staff would move forward relatively quickly to get the pieces installed. Mr. Mayer introduced Mr. Jerry Miles, Chairman of the Cultural Council, who updated the Council on the group's efforts and future goals. He advised that the funds for the four pieces of donated art were being donated by a variety of sources. He noted that the Town had more public art than the City of Scottsdale and that the Cultural Council hoped to have at least three more pieces of art donated by the end of the year. He commented that the momentum continued to grow. Mr. Miles requested that the Council accept these gifts. Councilmember Kehe MOVED to accept the four donated pieces of art as recommended and Vice Mayor McMahan SECONDED the motion. z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 3 of 15 There were no citizens wishing to speak on this agenda item. The motion CARRIED UNANIMOUSLY(7-0). Mayor Nichols thanked for Mayor and current Chairman Miles for his dedication to this project and thanked all of the members of the Cultural Council for their efforts to enhance and beautify the Town of Fountain Hills. AGENDA ITEM #9 — PUBLIC HEARING TO RECEIVE COMMENTS ON A SPECIAL USE PERMIT FOR A NURSING HOME IN THE R-4 ZONING DISTRICT, LOCATED AT 16655 E. EL LAGO BOULEVARD,AKA FOUNTAIN VIEW SENIOR CARE CENTER,LOT 1. CASE#SU2007-08. Mayor Nichols declared the hearing open at 7:00 p.m. Director of Planning and Zoning Richard Turner addressed the Council relative to this agenda item and stated that the owner/applicant in this case, Mr. Art Ursu, had been before the Town Council before on similar applications. In 1995, a Special Use Permit was approved for this property for a 100-bed nursing home. Construction began but the permit expired due to lack of progress. In 2000, a Special Use Permit was approved for another 100-bed nursing home and that permit also expired due to inactivity. In 2006, a third request for a Special Use Permit was heard by this Town Council for a 122-bed nursing home and a motion to approve that application had failed to receive a second and was therefore not approved. Mr. Turner referred to slides that depicted the subject property and noted that the property was zoned R-4, Multi- Family, and the fencing surrounded an area of initial construction and grading and the rest of the property was vacant. He noted that there was a surrounding condominium development and added that most of the surrounding property was zoned R-4 Multi-Family and was developed with condominiums. The property to the north was zoned C-2, with a Special Use Permit for multi-family use and that land had been developed with condominiums as well. He referred to the proposed site plan for the project and advised that the building was approximately 50,000 square feet and lot coverage was 25%. Most of the building would be two stories with the east end of the building being three stories. The building height would be 30 feet, the maximum allowed under the Zoning Ordinance, and access to the site would be from El Lago Boulevard and Verde River Drive. He stated that 122 beds were being proposed for the project. He reported that building elevations had been upgraded based on direction from the Planning and Zoning Commission He added that window treatments had also been improved over the previous application and effort had been expended to make the building more visually appealing. Mr. Turner stated that substantial opposition to the project existed and one of the objections heard involved noise, caused primarily as a result of deliveries to the proposed facility. He said deliveries could be restricted to reduce noise at night and during the early morning hours. Staff would suggested that no deliveries be allowed to occur between the hours of 8:00 p.m. and 6:00 a.m. Emergency vehicles sometimes also generate noise through their use of sirens but staff had been advised by the Fire Department that sirens were not commonly used in proximity to facilities such as this. Other concerns included traffic and parking; 39 parking spaces were proposed and the amount exceeded both Town and State minimum requirements. With regard to trip generation, staff estimated that 289 trips would be possible and if the property was developed as an apartment complex with approximately 44 units,there would be slightly over 300 trips per day. Mr. Turner reported that the Planning and Zoning Commission voted on July 26th to recommend approval of the application subject to the eleven stipulations contained in the staff report. Staff believed that the design of the proposed facility was acceptable. Building, location, access, circulation and parking was appropriate for the intended use. The amount of traffic generated by the use would be less than the trips that would be generated by the development of the site as a condominium project. The applicant would also be required to meet the public art requirement. Staff recommended approval of the proposal subject to the listed stipulations. Mayor Nichols thanked Mr.Turner for his presentation. Town Clerk Bev Bender advised that 9 cards were submitted by citizens who wanted the Council to know they; supported the project but did not wish to speak; 40 cards were submitted by citizens opposed to the project who z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 4 of 15 did not wish to speak; and 11 cards submitted by citizens who wished to address the Council. (Copies of all of the speaker cards were on file in the office of the Town Clerk.) Mayor Nichols requested that the speakers come forward as their names were called and present their remarks. John Connelly, 16715 E. El Lago Boulevard, addressed the Council and spoke in opposition to the project. He said that on September 24, 2004 the first meeting was held by the Planning and Zoning Commission regarding this issue (900 days ago) and stressed the importance of resolving this matter this evening. He stated the opinion that one would have had to live in one of the larger states in the country to appreciate how much joy it was to live in downtown Fountain Hills and he urged the Council not to support the request and to preserve the current lifestyle of the community. Dennis Burke, 16715 E. El Lago Boulevard, stated that he was the past president of the El Lago HOA and a current boardmember. He said that many of the residents thought that this issue had been "put to rest" last year due to the lack of support from the Council. He added that had they known that no vote left a door open, they would have been far less jubilant and much more forceful in their efforts to force the Council to make a decision one way or another. He expressed concerns regarding noise, safety and traffic. He said that there was a huge difference between assisted living and intensive nursing care and many were led to believe that this was a different kind of project. He questioned how the Planning and Zoning Commission could have gotten this vital information wrong and respectfully requested that the members of the Commission address this question publicly in the very near future. He defended Mr. Ursu's right to do with his property as he wishes but said that unfortunately, when you had a Planning and Zoning Commission, a Town Council, State regulation and a Federal regulation, rights suddenly took a "back seat" and it became a community issue. He asked whether the Council represents the community at large or just their constituencies and urged them to do the right thing for the entire community. Robert Alonzo, 16715 E. El Lago Boulevard, questioned the need for a 122-bed skilled nursing home in the Town. He said that the plans the applicant was submitting this evening were the same plans he had submitted 18 months ago in his unsuccessful bid for a Special Use Permit. He said that the plans did not address the parking and traffic issues that were associated with such a large facility. Three weeks ago, concerned citizens once again informed the Planning and Zoning Commission of their concerns and when asked about traffic, Mr. Ursu advised that the number of trips that would be generated by the proposed project would be less than those generated by a condominium project. He stated the opinion that this statement was a gross overstatement and added that parking was never addressed by the Commission and it remained a major concern. He said that the Council must vote "No." Elizabeth Alonzo, 16715 E. El Lago Boulevard, speaking on behalf of a number of homeowners from Plaza del Lago, said that they object in the strongest possible terms to the issuance of a Special Use Permit for a 122-bed skilled nursing facility. She added that this was not a residential retirement home or an assisted living facility; it was a skilled nursing home where patients were admitted under a physician's order. For all intents and purposes, this was a hospital that would operate as a 24/7 commercial business in a strictly residential neighborhood. It would be built within a few minutes walk of the downtown, Fountain Park and Town Hall. She concurred with the comments presented by previous speakers and questioned the strain a facility of this size would place on the Town's emergency services. Ms. Alonzo strongly urged the Council to deny the request for a Special Use Permit. Charles Humes, 16800 E. El Lago Boulevard, expressed concerns relative to traffic and parking and noted that El Lago Boulevard was a highly traveled thoroughfare and would become more so in the future. He added that although discussion had taken place regarding the proposed number of beds, no discussion had taken place relative to the amount of staff needed to run such a facility. He stated the opinion that a minimum of 30 staff members would be needed to operate the business and questioned where they would park. He added that there would be significant on-street parking if the facility was allowed to move forward and requested that the Council vote no on the application. Marguerite Muto addressed the Council and advised that she and her husband had lived in Town for 29 years. She noted that her husband was recently treated and released from the existing nursing home in Town and he had z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 5 of 15 received excellent care. She added, however, that parking even at that facility, was a problem and said that many times she was forced to park on the street. She stated the opinion that the same would be true if the current application was approved and the facility was allowed to move forward. She expressed concerns about parking on El Lago Boulevard, expressed the opinion that the facility was not needed and asked the Council to deny the request and protect the safety of the Town's residents. Art Ursu, a resident of Fountain Hills and the applicant in this case, addressed the Council and said that Fountain View Village, the nursing home referred to by the previous speaker, was at full capacity with a waiting list and a need existed for his project. He advised that a marketing study for the community was conducted that showed that there was a need for a facility with close to 200 beds. He stated the opinion that the project would be an asset for the community and requested that the Council approve the request. He added that effort was expended to meet all of the requirements and thanked the Council for the opportunity to address them. Rudolf Volkmann, a full-time resident of Fountain Hills, addressed the Council and said that he would like the Council to address the fact that the proposed nursing home was a business, not a residential area, not a multi- family use facility. He said that in the future he hoped that when these terms were used that describe zoning areas that they would be more specific when they talked about multi-family use and explaining to the public that it could include businesses. Richard Wintermantel, a full-time resident of Fountain Hills, said that when this case was previously heard, he brought up the fact that the elevations shown on the screen were a gross misrepresentation of what the property would actually look like because they were shot from a low and favorable angle. He said that at that time, the room was "full to the rafters" with individuals opposed to the project and the Council rejected the proposal, which he found quite gratifying. He added that he was somewhat disturbed to have to stand up before the Council again in August to look at a proposal that had not changed at all. It was still a business, it still involved 122 beds and the elevations remain misleading and, in fact,the only thing that might have changed was the addition of the third story that actually made the building more objectionable from visual point of view. He said that he was representing a large number of residents, who, because of the time of year, were not able to be present this evening and they were requesting that the Council render the same denial decision they rendered at the previous meeting. Jerome Gabos, 14918 E. Marathon Drive, addressed the Council and said that he concurred with the remarks of the previous speakers in opposition to the proposed project. He stated that the Planning and Zoning Commission's approval represented a "mechanical approval" and simply meant that the project met the requirements of the Planning and Zoning Commission. He added that the real decision rested with the Council and he asked that they support the residents and bring this ten-year problem to an end by voting no on the applicant's request. Jim Docherty, a resident of the Plaza del Lago condominiums, also agreed with the remarks presented by the previous speakers and expressed issues of concern relative to on-street parking and associated safety hazards. He also discussed speeding on El Lago Boulevard and potential accidents. He further stated that he read in the paper that the Town was instituting a plan with Maricopa County relative to air pollution and said that the project, if approved, would generate a lot of diesel traffic (trucks making deliveries, buses, patient transport vehicles, etc.). He noted that a Federal law stated that diesel driven vehicles could not idle for more than three minutes,but there were a lot of exceptions to that rule including vehicles that would have to run to maintain air conditioning or heat for the passengers (buses, ambulances, trucks making food deliveries, etc.) He stated the opinion that approval of the proposed facility would result in an air pollution situation and asked the Council to deny the applicant's request. Mayor Nichols thanked all of the speakers for their input. The Mayor declared the hearing closed at 7:45 p.m. j z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 6 of 15 AGENDA ITEM #10— CONSIDERATION OF A SPECIAL USE PERMIT FOR A NURSING HOME IN THE R-4 ZONING DISTRICT, LOCATED AT 16655 E. EL LAGO BOULEVARD, AKA FOUNTAIN VIEW SENIOR CARE CENTER, LOT 1. CASE#SU2007-08. Councilmember Dickey MOVED to approve the Special Use Permit and Vice Mayor McMahan SECONDED the motion. Councilmember Dickey stated that she wished there had been more communication and cooperation between Mr. Ursu and the neighbors. She questioned whether the neighbors were told what the property could be used for if a Special Use Permit was not issued. She said that a school, post office, church, community building, a home day care center or a group home could potentially be built on that site. She added that she would feel more comfortable knowing that the residents were aware of this fact and were still opposed to the current use. She noted that the issue was a difficult one and not necessarily"black and white" and said that she did not believe that the applicant, Town staff, or the Planning and Zoning Commission had motives to undermine the happiness or way of life for anyone in the community. She further stated the opinion that the residents who moved into that neighborhood assumed it was non-commercial residential and from the overwhelming opposition she believed she could conclude that potential buyers of any homes in the area would also share a lot of the negative reactions, which could affect homeowners' ability to sell their property and indirectly reduce property values. She advised that she was relying on existing Town ordinances and looking to #4 of what was allowed (legislative discretion) that said the Council may consider influence on adjoining properties plus peace, comfort of persons residing in the neighborhood and also the fact that there were other areas in Fountain Hills that would be available for such a use, including group homes. She added that she tried to comply (or compromise when appropriate) with residents' original expectations of the areas they decide to move to and at this time she was not inclined to approve the granting of the Special Use Permit. Councilmember Archambault brought up the issue of parking and Mr. Turner said that parking ratios were based on various aspects of uses and in this case the parking requirement was based on the number of beds. He added that staffing had been taken into consideration and he researched this issue and looked at some of the reference materials they had and similar facilities to gauge parking in the same manner and they did take staff into consideration when setting their ratio requirements. Councilmember Archambault said that he had struggled with this issue and staff had provided the Council with parking requirements that matched the State's requirements and the applicant had met that requirement. He felt as though the parking issue had been resolved and he looked further into the traffic issue that staff had researched as well. He noted that staff's numbers were based on solid findings and therefore for him the traffic issue was a non issue. He stressed the fact that it was not his intention to offend or personally attack anyone and added that he would like to present the research that he had come up with. Councilmember Archambault said that he believed that even if the nursing home was in place when the condominiums were purchased, the purchase price of the units would still have been around the asking price. He commented that the facility was allowed as a Special Use Permit but agreed that appearance needed to be taken into consideration and he believed that the facility did not fit and looked too clinical. He added that architecture was an issue for him but the defining factor for him was going to the nursing care facility run by Fountain View Village and advised that the facility had open beds. He reported that there were 64 beds at that facility and they served a population of 25,000 (1 bed for every 390 residents). At build out, the Town's population would be somewhere around 35,000 and using that scenario, they would only have to add an additional 26 beds in order to continue to provide the same service level. The proposal before them was for 122 beds and he said he had to ask whether this was really a survivable capacity or would the facility became a multi-use facility or something else. He added that if the facility becomes multi-use, he had concerns about the type of traffic it would generate and whether it would generate more traffic than a housing development. He also expressed concerns relative to upkeep and maintenance should the facility not garner enough occupied beds. He further stated that Fountain View Village struggled to keep 55 to 58 beds filled (at 58 beds they were at 90% capacity but the number (toe constantly fluctuated). z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 7 of 15 Councilmember Archambault also discussed medical staff, support staff and maintenance/service staff needed to run such a facility and advised that the existing facility struggles to meet State mandated staffing levels. He ,viiii) reported that during a one-week period, 60 people worked at the facility (staggered shifts included) with almost one person per bed. He commented on the shortage of nurses in the State. He added that although Mr. Ursu referred to a study that he said he had conducted, he had never had the opportunity to review that study that showed the demand he spoke about. He further stated that for him this issue was complicated by Mr. Ursu's resistance to meeting with the citizens to reach an understanding. He said that as a Council,it was imperative that they ask themselves whether this was the right location and whether the project represented a viable facility. He added that they must also consider what this facility might become should the beds not be filled and whether it could ultimately become an undesirable facility that they might someday wish was never approved. He stressed the importance of not taking Special Use Permits lightly. He noted that should the property someday fall into disrepair, it would negatively impact property values and residents' quality of life. Councilmember Archambault further stated that a year ago he stressed the importance of Mr. Ursu and the developer working in a cooperative manner with the Town, the end users and the citizens to achieve an ultimate acceptable project but said that this had not occurred. He emphasized the importance of looking at this as a long- range project and that he had to justify in his own mind that there was a need for a 122-bed facility in Fountain Hills. He added that they must promote businesses that serve the needs of the citizens and partner for success with involvement by the Town, the businesses and the end users. He stated the opinion that this project had not accomplished those goals. Councilmember Leger said that he too had had an opportunity conduct research into this issue and was very familiar with the ordinances. As far as Special Use Permits, currently nursing homes did require such permits particularly in a multi-family R-4 district. In awarding a Special Use Permit, they needed to take into consideration existing conditions. He had walked around the property and looked at the adjoining neighborhood. He indicated his intention to make two points. The Council must look at how the current ordinance reads but in some instances they were subject to judgment. He believed that the Planning and Zoning Commission made their judgment appropriately based on the technical aspects of the project. His tendency was to look at the technical aspects as well as the human factors. To satisfy the purpose of granting a Special Use Permit, it was his NINO understanding that the operational characteristics of a project was to be compatible with adjacent uses; compatible as well as complimentary. It was his judgment that the operational characteristics of this proposed project were neither compatible nor complimentary with adjoining uses in this particular zoning district. The second point he would like to make was that the establishment of the use being applied for must not be detrimental to the peace or general welfare of persons residing in the neighborhood and in his opinion this project also failed this test. He said that his opinion may be viewed as subjective but that was his judgment based on looking at the Town's ordinances and rendering his own interpretations. He added, however, that he believed some real data had been brought forth, namely the testimonies heard this evening and the comments he had received (phone calls and e- mails) from concerned citizens. He commented on the fact that the project had not even broken ground and clearly from what he had heard and seen, the peace, comfort and general welfare of the neighbors had already been adversely affected. Councilmember Leger stated that he could not support a request for a Special Use Permit. Vice Mayor McMahan noted that he supported this project in the beginning and he believes that Mr. Ursu had the right to use his property to develop his dream of building a nursing home in that area. However, there were still some objections that concerned him at this time, parking and the future of the facility if it did not succeed. He stressed the importance of the applicant answering and addressing those concerns. He said that this was a very difficult decision for him because he was very pro business and he was hesitant to turn down any legitimate businessman who had followed the rules, met the Planning and Zoning Commission's requirements and adjusted plans in order to move forward with a project. He added, however, that right now he still had a number of concerns (particularly parking on El Lago Boulevard). He commended Councilmember Archambault on his research and reiterated that he still had some objections to allowing the project to move forward at this time. Councilmember Schlum said that he had good feelings for Mr. Ursu and appreciated his passion and desire to build the facility. He believed Mr. Ursu was doing that for all of the right reasons but a lot of opinions had been expressed and a lot of hard work had been done to understand the issue as best as possible. He commented on the z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 8 of 15 fact that the property and surrounding properties were expected to be developed more commercially, prior to the Lor Villages being developed. The residential areas around this property had developed as condominiums, apartments or had converted from apartments to condominiums and it had become a residential area. He added that he appreciated some of the architectural changes that had been made to the plan but it remained substantially commercial and he would not support the issuance of Special Use Permit for this property due to the commercial intensity of the project itself. Mayor Nichols stated that this had been one of the toughest decisions he had had to make during his tenure. There was passion on both sides but they must remain focused on the best thing for the entire Town. As they move forward, they were going to see more and more baby boomers who were going to need care and the Town did need nursing home capacity and he also firmly believed in allowing competitive options to be brought forward. Having just one nursing home in Town did not provide a competitive option and so he did tend to favor the nursing home but in looking at the regulations as reviewed by Councilmember Leger he found he must question whether the proposed project would "fit into" the existing neighborhood. He expressed the opinion that the project did not "fit into" the neighborhood and he believed it would turn into a constant battle between the nursing home and residents. He personally believed that something else could go on that site and when he met with Mr. Ursu several weeks ago, Mr. Ursu mentioned that if this case did not go through he would develop apartments on that land and based on research conducted by staff, it appeared that apartments would generate more traffic than the nursing home. In addition, there would be problems associated with guest parking, sanitation trucks, mail/package delivery trucks, etc. An apartment development would probably generate more noise than a nursing home. Mayor Nichols commented that there was no good answer to the problem but in order to be true to the Town's codes, he would not vote to support the issuance of a Special Use Permit. Councilmember Schlum concurred with many of the comments expressed this evening and added that they needed to look at the downtown area and where they were going with the zoning and development in that area. They all wanted the downtown area to be vibrant and successful and they needed to have people living and playing in that area. He agreed with the Mayor that there was going to be a need for more nursing homes in the Town and there were other commercial areas in Town where a large facility could be built for that purpose. He stated the opinion that this area would benefit most from a residential multi-family use and would establish more of a downtown "live, work and play"environment. Councilmember Kehe agreed that this decision had been a difficult one and said that right now Fountain Hills had approximately 25,000 residents and according to census figures, about 49% of that population consisted of senior citizens so at some point they were going to need another nursing facility. He added that they could conceivably need an additional 250 beds so they could not rule out the fact that at some point that need would have to be met. He asked whether a Special Use Permit, once issued, was transferable. Mr.Turner responded that the permit would be transferable. Councilmember Kehe said that Mr. Turner had previously explained to him the definition of a nursing home and one of the components in the definition was of a convalescent nature. He asked whether a drug, alcohol or mental health rehabilitation center could be considered a convalescent center and asked whether at some point the nursing home would have the ability to become a convalescent center. Mr. Turner stated that as the Zoning Administrator he would hesitate to enter into an interpretation such as that without first conducting some in-depth research. He said he would be happy to do so and report his findings to the Council. Vice Mayor McMahan advised that in the beginning in Fountain Hills, the area located directly across El Lago was zoned totally commercial. Part of the property was sold off and the condominium project was developed, which did increase the traffic levels. He reiterated that his concern had to do with traffic and what the nursing home could potentially become should it not be a successful venture. (hip,, There being no further discussion on the issue, the Mayor called for a vote on the motion. The motion FAILED for lack of a majority vote(0-7). z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 9 of 15 AGENDA ITEM #11 — PUBLIC HEARING TO RECEIVE COMMENTS ONA SPECIAL USE PERMIT FOR EXTENDED OPERATING HOURS IN THE C-C ZONING DISTRICT, LOCATED AT 11056 N.,410) SAGUARO BOULEVARD,AKA TWO STEP SALOON,LOT 13. CASE#SU2007-13. Mayor Nichols declared the public hearing open at 8:20 p.m. Planner Gene Slechta addressed the Council relative to this agenda item and stated that the request was to consider a Special Use Permit to extend operating hours for restaurant and bar in the C-C Common Commercial zoning district. The applicant was asking to extend the closing hours to 2:00 a.m. seven days a week. Although the request was for every day, the applicant anticipates staying open until 2:00 a.m. every Friday and Saturday and actual closing hours during the week could vary based on business demand. The latest closing time in this district without a Special Use Permit was 11:00 p.m. The restaurant and bar was located at 11056 N. Saguaro Boulevard. The ordinance that was impacted was Chapter 12, Section 12.04, which spelled out uses that were permitted in C-C and C-1 zoning districts in accordance with a Special Use Permit. One of those, 12.04B, allows for hours of operation between 11:00 p.m. and 7:00 a.m. Mr. Slechta referred to slides depicting the location of the business and noted that to the west and southwest of the site was a parking lot and other businesses. To the south, across Saguaro, was the 15th hold of the Desert Canyon Golf Course zoned R-1 RUPD. To the east was Saguaro Boulevard and across Saguaro was a single- family residence zoned R1-8. To the north was the Emerald Wash (zoned R-3) and past the wash to the north were residences, single-family homes zoned R1-8. Parking was common and pre-approved (approximately 125 spaces in the lot) and additional parking exists in close proximity. Exits were on the east onto Saguaro and traffic exiting would be turning right to go south. There were also exits on the south side of the parking lot along Amherst. Mr. Slechta informed the Council that no written objections were received as a result of the posting, but a number of residents did speak at the Planning and Zoning Commission's meeting (both in support and opposition). Most of the objections indicated a concern for late night noise and therefore, staff had conducted a noise test on Saturday evening, August 4th, between the hours of 10:35 p.m. and 11:15 p.m. (the current closing time) and the Noir results indicate that the decibel readings were acceptable for this business. He noted the various barriers that surround this site, including the wash, Saguaro Boulevard, the parking lot and the golf course. He further stated that parking was sufficient, the building location was adjacent to a road and the wash and buffers residences and the noise test indicated that the levels were actually less than the normal traffic that travels Saguaro Boulevard. Mr. Slechta advised that staff's recommendation was to approve the request for extended hours and said that approval would result in minimal neighborhood impact. He indicated his willingness as well as the willingness of the applicant to respond to questions from the Council. Mayor Nichols thanked Mr. Slechta for his presentation. Town Clerk Bev Bender advised that eight citizens had submitted requests to speak on this issue. In addition, five cards were submitted by citizens who were in support of the project but did not wish to speak and six cards were submitted by citizens opposed to the project who did not wish to speak. Mayor Nichols requested that the citizens come forward as their names were called and present their remarks. Dr. Steve Feyrer-Melk addressed the Council and stated his support for the issuance of the requested Special Use Permit. He said that from a business perspective it appeared appropriate for an establishment such as this to be allowed to extend its hours as a matter of financial soundness. Other similar businesses in Town had similar closing hours and the business should not be put at a disadvantage. The Two Step Saloon was a very unique business and the owner had done a fantastic job and invested heavily in order to make the Saloon a five star type of western hang out for people to bring family and friends. It serviced a unique location for Fountain Hills' residents and served as a"hot spot" for winter visitors who wanted to take family and friends to a western-type of location that was classy and close by. It brought people from outside of Town and generates sales tax dollars (added dollars would be generated as a result of the extended hours). The business also generated outside media z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 10 of 15 attention which helped the Town as a whole. He stressed the importance of keeping people in Fountain Hills and said in his line of business he encouraged couples to have date nights and the Two Step Saloon was a perfect place for couples to enjoy time together. He urged the Council to approve the request. Jeffrey Burch, 15634 E. Cholla Drive, said he was retired and his wife was a school teacher and they lived a pretty quiet existence. He had visited the establishment twice; once out of curiosity and a second time to show his wife the place. Over the last seven years he had observed, primarily through the eyes of the local newspaper, the interesting "dance" in which the Town of Fountain Hills encouraged new businesses and then creates roadblocks to their success. He noted that this was a building that had previously housed three failed businesses, just during the time he had lived in Town, and this new owner had come in, spent a lot of money to make it a very nice place, had the appropriate liquor license and yet seemed to be in the wrong zoning area. He stated that too often decisions were based on the howling of the vocal minority and he urged the Council to approve the applicant's request and allow this business to compete with other establishments in Town. Jim Docherty addressed the Council and agreed that it would be nice to have a place in Town where his out-of- town children could go to when visiting Fountain Hills. He urged the Council to "give it a try" and added that they had nothing to lose. He said that they could grant a provisional approval if they felt that to be appropriate. David Gage stated that he represented the applicant, Andrea Noble, and discussed the benefits that the business offers the community, including a full service restaurant, which remained open until one hour prior to their regular closing time. The business also brought variety to the Town and the owner had done everything that she had been asked to do in order to operate her business. He requested that the Council approve the applicant's request for a Special Use Permit and allow the owner to financially operate a successful business. He noted that the business would be at a disadvantage without the extended hours and requested that the Two Step Saloon be allowed to operate on a level playing field to ensure its success. He also discussed security measures at the business, including video cameras (both inside and outside), the fact that outside liquor consultants were hired to train staff, and efforts expended above and beyond requirements to ensure that the business was a first-rate Low operation. He noted that he had a petition that contains approximately 400 signatures of citizens who supported the issuance of the Special Use Permit and requested that the Council approve the issuance of the permit. Jane Denver said that she had lived in Town since 1991 and had enjoyed the small town atmosphere. She and her family live on Indian Wells across from the golf course from the Two Step Saloon and would like to add their opposition to the granting of the Special Use Permit. She said that they have had to put up with live bands on two different occasions over the last four years. She added that a comedian once spewed vulgarities over loudspeakers and the ear-splitting music literally shook their windows. When they called the Sheriff's Office to register a complaint, they were told they could not do anything because the business had a Special Permit from the Town Council to remain open until midnight (on a weekend). She said that on one occasion she had visitors from out of Town staying with her and although they were considering retiring in Fountain Hills, they changed their mind after hearing the noise. She added that a recent ad by the business in a local newspaper showed a 2:00 a.m. closing time prior to any hearings taking place by the Planning and Zoning Commission or the Council. She stated that the owners were surely aware of the required closing hours when they purchased the building and requested that they be required to adhere to those original hours in order to preserve the peace and quiet, investment and quality of life of the residents. Barbara Bruno also addressed the Council and said that she was speaking on behalf of herself, a number of her clients who had purchased condominiums in the area and other concerned residents who were against the 2:00 a.m. closing hour. She commented on the fact that the noise study was conducted in August when half of the population was out of Town and said that would not give the Council a true picture of the noise potential that could occur. She added that she was also concerned about traffic noise up and down Saguaro Boulevard and the side streets. She said that according to the Arizona Constitution, she had the right to a quiet life and urged the Council to uphold this right for her and other concerned residents. She said that if the Council did not have a plan in place to protect her rights, then she would ask that this issue be continued until such a plan can be developed. Edmundo Robarna, an attorney representing Chris Beall, a developer who was developing the property located adjacent to the Two Step Saloon (a condominium project). He stated that they could understand why the owners z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 11 of 15 1 of the Two Step Saloon would want to extend their operating hours and discussed the increase in alcohol sales that would occur as a result of the issuance of such a permit. He discussed negative impacts on the community as a whole as well as on the potential owners of the condominiums that would be developed next to the business (approximately 150 feet away) should the permit be issued. He requested that the Council not jeopardize the success of Mr. Beall's upcoming project and not negatively impact the quality of life in Town. Chris Bea11, the developer referred to by Mr. Robarna, also spoke in opposition to the approval of the Special Use Permit. He said that he had invested a lot of money in Town and intended to invest more in the future. He did not have anything against the establishment itself but he did have concerns about the effects of the extended hours on the surrounding residential community as well as his future condominium complex. He stated the opinion that even an 11:00 p.m. closing seems inappropriate to him. He noted that nightclubs result in corruption, loud police sirens and drunk drivers. He asked the Council to deny the Special Use Permit and require the applicant to adhere to the current closing hours. Mayor Nichols thanked all of the speakers for their input. Mayor Nichols declared the public hearing closed at 8:47 p.m. AGENDA ITEM #12 — CONSIDERATION OF A SPECIAL USE PERMIT FOR EXTENDED OPERATING HOURS IN THE C-C ZONING DISTRICT, LOCATED AT 11056 N. SAGUARO BOULEVARD,AKA TWO STEP SALOON,LOT 13. CASE#SU2007-13. Councilmember Kehe MOVED to approve the Special Use Permit and Councilmember Schlum SECONDED the motion. In response to a request from Councilmember Kehe, Mr. Robarna pointed to the location of the proposed condominium development he discussed under Agenda Item#12. Mr. Robarna advised that Mr. Beall just found out about this issue two days ago. ,,,a) Mr. Slechta referred to the location of the Emerald Wash and clarified that the site of the proposed condominium project was a small R-3 parcel in an area above the wash (a triangular piece of property), which was different from where Mr. Robarna had indicated. Councilmember Dickey MOVED to amend the motion to recommend approval of the Special Use Permit for an evaluation period of six (6) months, reserving the right to further amend or revoke the permit at that time and Mayor Nichols SECONDED the amendment to the motion. Councilmember Archambault said he believed a fair compromise was probably a test period. He asked staff whether all of the restaurant's entertainment/music must be contained within the building and whether any loud speakers were allowed. Mr. Slechta confirmed that the entertainment/music must be contained within the building and advised that he was not aware of any loud speakers being used at the restaurant. Mr. Slechta stated that the restaurant would have to obtain a permit to conduct any outside function, particularly one that would generate noise. In response to a question from Councilmember Schlum, Town Attorney Andrew McGuire stated the opinion that the Council could condition the permit upon compliance with certain noise requirements. He said that the Special Use Permit process was very broad in terms of the Council's ability to either accept the conditions of the Planning and Zoning Commission, deny the recommendations, or amend/stipulate the approval. Mr. Pickering commented that the Town's noise ordinance would be enforced. Mr. Slechta outlined the process staff followed to enforce the noise ordinance. Councilmember Schlum also discussed light pollution and requested that staff work with the owner to address the outdoor lighting issue to ensure that it did not negatively impact the neighbors. z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 12 of 15 Vice Mayor McMahan said that he was opposed to the proposed amendment and stated the opinion that the issue should be addressed this evening. He added that the owner had put a lot of money into the business, had some great plans for it, there were noise ordinances that the applicant was aware of as well as disturbing the peace ordinances and most nights the restaurant would close far in advance of 2:00 a.m. because there just would not be enough business. Mayor Nichols called for a vote on the amendment. The motion CARRIED by majority vote (6-1) with Vice Mayor McMahan voting nay. Mayor Nichols said that they would now go back and discuss the main motion. Councilmember Schlum thanked the citizens for their input and said that noise was going to be the biggest concern. He noted that the property was in a commercial area and clarified that they were looking for a Special Use Permit just to extend their hours; they were not looking to put a commercial use in a residential area. He agreed with statements made relative to the importance of being able to provide residents and visitors with some variety and choices and added that he appreciated the level of investment that the owner had put into this business to ensure a quality establishment in the Town. Mayor Nichols expressed the opinion that they had reached a good compromise and said that one of the Council's goals was to support local businesses. He said that the condition the Council had placed on the approval would give them the opportunity to monitor how the business operates during the Town's busy season and should there be any problems, the Council would have the ability to address them. Vice Mayor McMahan added that allowing the restaurant to extend their operating hours would also allow them to compete with other restaurants and said this was both fair and appropriate. He said that he would vote in support of the six-month trial period. ,r The motion CARRIED UNANIMOUSLY(7-0). AGENDA ITEM #13—PUBLIC HEARING TO RECEIVE COMMENTS ON A SPECIAL USE PERMIT FOR REDROCK BUSINESS PLAZA, LOT 4, TO ALLOW "CHASE BANK" TO PROVIDE A DRIVE- THRU WINDOW SERVICE TO CUSTOMERS. CASE#SU2007-10. Mayor Nichols declared the public hearing open at 8:57 p.m. Senior Planned Bob Rodgers addressed the Council relative to this agenda item and said Chase Bank had received approval to construct a full-service branch on Shea Boulevard. This request would allow that branch office to operate a drive-thru teller and ATM window in a C-1 zoning district. He noted that the site was located on Lot#4 of the Redrock Business Plaza on the north corner of Shea Boulevard and Monterey Drive. He referred to the site plan and said that the Zoning Ordinance required drive-thru facilities to demonstrate that they had room for a minimum of eleven vehicles and according to the site plan, that criteria would be easily met. He added that there was also a 16-foot wide escape lane around the outside. The architectural elevations show a relatively standard canopy design and the building design would blend with the existing plaza and other buildings. Mr. Rodgers advised that staff recommended approval of the Special Use Permit subject to the stipulations outlined in the Staff Report. There were no citizens wishing to speak on this agenda item and the Mayor declared the public hearing closed at 9:01 p.m. AGENDA ITEM #14 — CONSIDERATION OF A SPECIAL USE PERMIT FOR REDROCK BUSINESS PLAZA, LOT 4, TO ALLOW "CHASE BANK" TO PROVIDE A DRIVE-THRU WINDOW SERVICE TO CUSTOMERS. CASE#SU2007-10. z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 13 of 15 Councilmember Archambault MOVED to approve a Special Use Permit and Vice Mayor McMahan SECONDED the motion. Councilmember asked if the applicant was present and thanked him for his patience this evening. Councilmember Schlum asked whether the property located to the east was zoned commercial and Mr. Rodgers confirmed that it was. There being no additional questions or comments, the Mayor called for a vote on the motion. The motion CARRIED UNANIMOUSLY(7-0). AGENDA ITEM #15 — CONSIDERATION OF RESOLUTION 2007-32, AMENDING THE TOWN OF FOUNTAIN HILLS FINANCIAL POLICIES RELATING TO THE DESIGNATION OF NEW CONSTRUCTION SALES TAX COLLECTIONS. Finance Director Julie Ghetti addressed the Council relative to this agenda item and explained that Resolution 2007-32 was intended to address the issue of using one-time revenue, such as construction sales tax, for one-time expenditures. She explained that as the Town approached build out,the source of revenues related to construction would diminish and if the Town were to rely on those revenues to fund on-going operations, cuts in services would be required to balance the budget. It was important for the Town to operate on those revenues that were reliable and on-going. Town construction revenues were dependent upon building permit activity and as they had seen over the last year, there was a significant decrease in building permit activity so the construction revenues were pretty volatile. Ms. Ghetti advised that since 2004, the Town had been funding the capital projects fund with advertising and residential rental revenues; however, with the approval of this resolution, those revenues would revert to the General Fund and the construction related revenues would go into the Capital Projects Fund. In preparing the 07- 08 budget staff anticipated that these one-time revenues would be used for capital expenses and budgeted 85% of the construction sales tax in the Capital Projects Fund. Staff recommended approval of Resolution 2007-32 to amend the Town's financial policies to allocate 85% of the construction sales tax to the Capital Projects Fund. Ms. Ghetti indicated her willingness to respond to questions from the Council. Vice Mayor McMahan MOVED to approve Resolution 2007-32 and Councilmember Dickey SECONDED the motion. Councilmember Dickey said she had this item removed from the Consent Agenda and expressed appreciation to Ms. Ghetti for her presentation. She added that she thought it had been important for the citizens to hear an explanation of this agenda item. In response to comments from the Council,Town Manager Tim Pickering advised that this action was planned for in the budget and they did not anticipate depending on this revenue for any operating purposes. He added that he believed that was one of the mistakes they made in the past (co-mingled one-time revenues) and they were now saying that one-time revenues were great, let's keep collecting them, but let's use those for one-time items. He stressed the importance of living off of revenue that was on-going. Mr. Pickering confirmed that the Strategic Planning Advisory Commission(SPAC) was aware of this action. Additional discussion ensued relative to this issue and Ms. Ghetti advised that this action would make the General Fund more stable. Mayor Nichols asked for a vote on the motion. The motion CARRIED UNANIMOUSLY(7-0). z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 14 of 15 AGENDA ITEM#16-SUMMARY OF COUNCIL REQUESTS BY TOWN MANAGER. Le None. AGENDA ITEM #17 - COUNCIL DISCUSSION/DIRECTION TO THE TOWN MANAGER. (TWO ITEMS) 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 Prior to adjournment, Mr. Pickering introduced newly appointed Public Information Officer Katie Decker to the members of the Council and the audience. Mayor Nichols and the members of the Council welcomed Ms. Decker and congratulated her on her appointment. Ms. Decker said that she looked forward to serving the Town of Fountain Hills. AGENDA ITEM#18—ADJOURNMENT. Councilmember Schlum MOVED that the Council adjourn and Councilmember Leger SECONDED the motion, which CARRIED UNANIMOUSLY (7-0). The meeting adjo ed at 9:14 p.m. TOWN OF FOUNTAIN LLS B �' Y Wally Nicho ,Mayor ATTEST AND PREPARED BY: Bevelyn J. n ,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 16th day of August 2007. I further certify that the meeting was duly called and that a quorum was present. DATED this 6th day of September 2007. Bevelyn J. B der, own Clerk L z:\council packets\2007\r9-6-07\08-16-07 minutes.doc Page 15 of 15 j J