Planning & Zoning Commission Regular Meeting Minutes

Gilbert Municipal Center
1025 S. Gilbert Rd.

March 7, 2001

COMMISSION PRESENT:

Chairman Karl Kohlhoff, Vice Chairman Joan Krueger, Commissioner Susan Preiss, Commissioner Stan Strom, Commissioner Brigette Peterson, Commissioner Dan Dodge, Commissioner James Beene, Alternate Commissioner Michael Monroe

STAFF PRESENT:

Planning Director Jerry Swanson, Planning Manager Maria Cadavid, Planning Manager Linda Edwards, Senior Planner Mario Mangiamele, Senior Planner Dan Fairbanks, Senior Planner Geir Sverdrup

ALSO PRESENT:

Town Attorney Kelly Schwab, Wayne Bryon, Gilbert Independent Newspaper, Council Member Mike Evans, Recorder Trasie Johns

I N D E X

PLANNER CASE PAGE VOTE

MR. MANGIAMELE S531H 5 APPR.
MR. MANGIAMELE S531I5 5 APPR.
MR. MANGIAMELE S531J 5 APPR.
MS. EDWARDS S549 7 TABLE
MS. CADAVID UP01-1 8 APPR.
MR. FAIRBANKS UP00-15 15 APPR.
MR. MANGIAMELE Z00-22 16 APPR.

CALL TO ORDER:

Vice Chairman Krueger called the meeting to order at 6:00 p.m. She explained that Chairman Karl Kohlhoff would be coming a little late as he was flying in from out of town.

ROLL CALL:

Ms. Johns called roll and a quorum was determined to be present.

APPROVAL OF AGENDA:

Vice Chairman Krueger requested approval of the agenda.

A motion was made by Commissioner Dodge, seconded by Commissioner Strom to approve the agenda.

Motion Carried 7-0.

COMMUNICATIONS FROM CITIZENS:

Vice Chairman Krueger announced that at this time members of the public may comment on items not on the agenda. She stated that the Commissionâ??s response is limited to responding to criticism, asking staff to review a matter commented upon or asking that the matter be put on a future agenda. She asked if anyone would like to speak.

No one came forward.

Chairman Kohlhoff joined the Commission at 6:05 p.m.

CONSENT ITEMS

Minutes: Study Session and Regular Meeting minutes of February 7, 2001.

A motion was made by Vice Chairman Krueger, seconded by Commissioner Dodge, to approve the minutes of the Study Session and Regular Meeting of February 7, 2001.

Motion Carried 7-0.

ADMINISTRATIVE ITEMS

General Plan Policy Alternatives to guide the establishment of gated residential communities.

Senior Planner Mangiamele stated that the primary reason why they were discussing this item was due to the concern they heard from the Commission approximately two months ago regarding what they believed was a lack of policy regarding gating communities. Staff felt that they also needed to have guidelines when looking at gating residential streets or the privatization of streets. He reminded the Commission that on May 9, 2000 there was a joint meeting with Town Council members to discuss planning related circulation systems throughout the Town. One of the items that came up during this meeting was the gating of communities. He noted that during that meeting there was a general consensus reached that stated that residential subdivision gates were typically all right, but they shouldnâ??t hinder the flow of traffic for emergency access or other types of services.

Mr. Mangiamele noted that the Town faced a lot of challenges in this growing trend in the development community for gating communities with respect to vehicular access. Additionally, he stated that private streets and gated communities should adhere to the Town standards and also be privatized in that long term maintenance and costs associated with this are incurred by the Home Owners Associations.

Mr. Mangiamele stated that in response to the issues at that joint hearing, Council approved GP00-5, which talked about many vehicular circulation elements. One of these was the highly debated Ocotillo Road and Section E.2, vehicular transportation policies. Within this policy it is very clear that the gating of unloaded collector streets should not be allowed. However, this policy didnâ??t discuss the gating of local streets. Therefore, Staff provided four alternatives for the Planning Commissionâ??s consideration. He asked for direction from the Commission to go forward in adding this to the General Plan to be considered for public vote in November. Staff also wanted to recommend that the Commission give direction in which Staff can go back and work on subdivision regulations with respect to the ULDC so they could have tools to enforce any policy they would feel was appropriate.

Mr. Mangiamele went through each alternative that was listed in the Staff Report, noting that they went from the most restrictive to the least restrictive:

Alternative 1. Prohibit all future gated communities. This policy would allow for the completion of those gated communities that have already approved zoning and/or subdivision plats. No new approvals would be given for gated communities.

Alternative 2. Allow Master Planned gated communities only in very limited circumstances. This policy would require the preparation of ordinance language that would establish the conditions under which gated communities could be approved. Possibilities include allowing them only as part of master planned developments, limiting them to a percentage of the total number of units or an absolute maximum number, allowing them only in certain zoning classifications, etc. In any event they would have to have a second access point, either emergency-only or general purpose. Gated entries would be required to be manned, at a minimum during the daytime and early evening hours. Gated communities would have to maintain good circulation through neighborhood and collector street access. All streets in a gated community would be privately owned and maintained. This policy alternative would generally prohibit the retrofitting of gates in existing neighborhoods.

Alternative 3. Generally allow gated communities as long as good neighborhood circulation and emergency access is provided. This policy alternative would allow the market to determine the extent of gated communities, as long as they did not interfere with collector street continuity. The size and extent of gated communities would not be a concern of the Town.

Alternative 4. Allow gated communities in all developments as long as emergency access provisions are made, regardless of neighborhood circulation patterns. This policy would be the most permissive, requiring only good emergency access to the development. No criteria would be established for size or the impact of the gated community on neighborhood circulation. Existing neighborhoods could conceivably be retrofitted with access gates.

Mr. Mangiamele concluded his presentation and asked for questions or comments from the Commission.

Commissioner Dodge asked for clarification on Alternative two, asking if there would not be any automated gates, requiring all gates to be manned.

Mr. Mangiamele stated that was what was being proposed in this option and that if they were going to have a gated community they might want it to be manned during the busiest hours during the day to help service vehicles enter.

Commissioner Dodge asked for clarification on Alternative three and noted that there was not a limit on the number of homes that could be gated.

Mr. Mangiamele stated that was correct and that this would be a less restrictive alternative than number one or two.

Planning Director Swanson stated that although the report was technical, he asked the Commission to talk about and debate the social implications of gated communities because that was a policy consideration. He stated that there was an increasing trend toward isolation and that the gating of communities usually occurred in places where security is a major issue. He said that he didnâ??t feel this was the case in Gilbert. He stated that there was a trend toward social and economic segregation behind gated communities. Not meaning to imply that it wasnâ??t something they didnâ??t want to do, but he asked for the Commission to evaluate this and give the Staff direction on where along this spectrum given to them in the Staff Report that they believed the Town ought to be.

Vice Chairman Krueger stated that she preferred Alternative two. As Director Swanson stated, she agreed that she would like to see the Town as a place where there is a lot of social interaction and that the economic base of the Town doesnâ??t lend itself to needing gated communities for security. On the other hand, she stated that having lived as a single woman there was a feeling of comfort in living in a gated community. She added that there would be certain members of the community that would like to be in this kind of development. She stated that she would hate to restrict people from living in the Town of Gilbert because these communities werenâ??t available and yet she didnâ??t want to see them proliferate in the Town. She stated that she would like them to have some temperance on their approach on this issue.

Commissioner Preiss stated that she agreed with Vice Chairman Joan Krueger and Alternative two was her first choices. She stated that she didnâ??t think they needed the section about the manned gate in this option.

Commissioner Dodge agreed with the opinions stated by the other Commissioners. In looking at Alternative two and three, he stated that he would like to restrict the use and the number of gated communities. He would also agree that the manning of the gates was a problem because it implied that a larger area was being gated. He added that there wouldnâ??t be a manned guard tower if there was only twenty homes behind the gate because it wasnâ??t economical. Therefore, he stated that when you are talking about a manned gate, you would be referring to a facility with hundreds of homes behind a gate. He felt that they needed to avoid that kind of development, other than in perhaps a retirement community. He said that perhaps they could make exceptions for that kind of a community, but as a general residential community, it needed to be provided without a manned gate throughout the whole community. He referred to Val Vista Lakes and discussed how small communities in this area were gated, without the whole community behind a gate.

Commissioner Peterson agreed with Commissioner Dodge that they should not be required to be manned, but to leave it up to the subdivision itself whether or not to man the gate. She agreed that the second alternative would be her choice.

Commissioner Beene stated that his choice was Alternative three because he felt that the overriding concern was circulation and emergency access. He stated that he felt the market should decide whether gated communities come into Gilbert or not, as long as the circulation and emergency access issues were addressed by the Planning Staff and the Commission.

Commissioner Strom stated that he preferred something between Alternative two and three. He stated that the point they looked at in the Parks and Open Space was that Gilbert had a significant amount of youth that were involved in the athletic events and they used common area facilities. There were some preliminary discussions of a large parcel, 300-400 acres, becoming a gated community and his thought was that if there was a master plan community, it implied that if the parcel was large enough there would be open spaces and parks that would be unrestricted. The part that was gated was usually a small subdivision that generally didnâ??t have a lot of turf areas. That would work in his opinion. The reason he tended to go towards option three was that there could be situations where a small parcel is not part of a larger master plan community and by such it is small and isolated. If they adopted option number two, he stated that they would not be allowed to have a little project such as this that wouldnâ??t have an exclusionary effect on the open spaces. He also agreed that they didnâ??t need to do the manned gate, which is a part of option number two. He recommended a blend between Alternative two and three.

Chairman Kohlhoff stated that two of the examples that were given, Leisure World and Sun Lakes had private streets. Both were located in the county and so they both have their own security. He stated that he had a problem with private streets. He added that they also needed to consider what kind of community they wanted; an elite community that is private, or an open community that is open to all. He agreed that Alternative number two would be his choice and that they should maintain their communities. He said that theses communities may come to the Town and ask to have their private streets maintained, not at the cost of the homeowners, but of the Town.

After a brief discussion on what could be changed on Alternative number two, Chairman Kohlhoff asked if they could table this item until the next meeting.

Planning Director Swanson stated that this could not be done because it was their intent to publish policy as a part of the General Plan draft and timing would not allow them to do this. He added that he understood what they would like the language to be and that they could amend it when they held their hearings and made their final recommendations to the Council. He stated that they would make the changes based on their comments.

Chairman Kohlhoff stated that he liked the underlined language in Alternative number two “only in very limited circumstances” because the next item on the agenda talked about 1,500 acres. He asked the Commission if they were comfortable with the Staff putting this item out on the General Plan.

The Commission agreed to let the Staff make the changes and include the gating alternative on the General Plan.

Senior Planner Mangiamele asked if the Commission would like to direct Staff to look at an allowable maximum number of units.

Chairman Kohlhoff suggested that they have a range cap of units.

Vice Chairman Krueger agreed, adding that they would need to look at guidelines at would be reasonable under those circumstances.

Commissioner Dodge agreed, adding that they would need to determine how big of a community they would want behind a set of gates.

Senior Planner Mangiamele asked if they would want them to look at this for all types of residential type zoning districts and not limit it to various classifications.

Chairman Kohlhoff agreed, stating that they didnâ??t want to micromanage this and would like them to go ahead and draft this.

Planning Director Swanson stated that they would invite public comment on it when the draft was circulated for agency and public review.

Chairman Kohlhoff asked the Staff to make a list of the communities that were currently gated, where they were located and how many units were included.

S531H - Amended Preliminary Plat for Seville â?? Parcel 12, generally located east of the southeast corner of Chandler Heights and Recker Roads; and,

S531I - Amended Preliminary Plat for Seville â?? Parcel 13, generally located south of the southeast corner of Chandler Heights and Recker Roads; and,

S531J - Amended Preliminary Plat for Seville â?? Parcel 14, generally located south of the southeast corner of Chandler Heights and Recker Roads.

Senior Planner Mangiamele stated these items were a request for an amended preliminary plat for Parcels 12, 13 and 14 within the Seville Master Plan Development. As discussed in the previous case, the reason this was continued from a previous meeting was due the concern that there was lack of policy framework on gating of communities. With some direction from the Planning Commission, Staff wanted to bring this item forward for consideration. As a recap, he stated that this case had been continued for the last two month. He showed a visual aid of the plan and stated that the overall acreage for the development was almost 1,400 acres. The applicant was proposing to gate approximately 248 lots, which would be about 125 acres. He showed his visual aid and described the internal collector roads, arterial roads and where the proposed gates would be located, noting that the gates would not be located on the collector roads.

He showed a visual aid of the detail that Seville was proposing to utilize for Parcels 12, 13 and 14. He stated that Staff felt they had designed this with adequate stacking distance as well as a possible turn around area. With the policy direction that was provided on the prior case, he stated that Staff was recommending approval of these amended plats subject to a number of conditions.

Chairman Kohlhoff asked if the applicant was present and stated that he would like to ask him some questions.

Senior Planner Mangiamele stated that he was.

Commissioner Dodge asked Mr. Mangiamele if these were the only gated parcels within Seville that would be gated.

Senior Planner Mangiamele stated that there might be other parcels that could be gated, and that Staff had requested from the applicant to see any other proposed gated parcels. He stated that the applicant would be better suited to answer any specific questions on this item.

Brad Hare, 8800 N. Gainey Center Drive #350, Scottsdale, with Shea Homes came forward. He stated that he was the director of planning. He stated that they only intended to gate those three communities in phase one. He added that they might be looking at gating Parcels 29 and 30 in phase three. These would be the only other communities that they would ask for gates in the future. He commented that these would be very isolated communities and they would like to satisfy that market. He stated that these communities should not be any larger than about 125 lots. In the first phase the largest parcel would be 92 lots. He stated that if they were gated, this would not prohibit anyone from enjoying the Seville open spaces oriented toward the public trails, golf club, community center, sports and recreation center.

Chairman Kohlhoff asked if they were going to have a single homeowners association.

Brad Hare stated that he believed there would be one association with the maintenance of these gates included in them. All roads would be built to meet or exceed all public road standards and the gate would be placed over the entry.

Chairman Kohlhoff stated that he was concerned that the rest of the developement that didnâ??t live in these private areas should not be required to maintain those private streets. He recommended that only the people that lived in these areas should be responsible for maintaining their streets and gates.

Mr. Hare stated that they were currently working out those details.

Commissioner Dodge agreed that he was concerned that all the homeowners were paying for maintenance for only a small portion of homes that would be using this service.

Senior Planner Mangiamele stated that in the Staff Recommendations, there was a statement in section b. that discussed disclosure of possible costs. He asked if the Commission would like further clarification.

Chairman Kohlhoff stated that it was pretty general, but would be fine if it was broadly interpreted.

A motion was made by Commissioner Strom, seconded by Commissioner Dodge, to approve S531H, S531I, S531J subject to Staff stipulations.

Motion Carried 7-0.

Except as modified herein, the developer shall comply with stipulations of Council Ordinance No. 1264, as modified.

All private streets shall be owned and maintained by a Seville Homeowners Association. Disclosure shall be provided to potential residents regarding the possible costs associated with maintenance of private streets.

Installation of limited access gates leading into the subject parcels shall be subject to the Fire Departmentâ??s Regulation No. 99-11-22, as modified.

S549 â?? Preliminary plat for an approximate 80 acre parcel with Town of Gilbert PAD (Planned Area Development Overlay District) with the underlying zoning classifications of R1-5 (Single Family Residential), R-2 (Multi-Family Residential Detached) located ¼ mile west of the southwest corner of Ray and Power Roads.

Planning Manager Edwards stated that they were looking at an eighty-acre project that came before them and they had provided a unanimous recommendation for the zoning to the Town Council. She showed a visual aid that had a one-phase project for the site plan. She added that it was very unique and had complied with the Gateway Policies for design issues, circulation, open space, connections to adjacent properties and buffers to other uses.

Ms. Edwards stated that the applicant had done a good job in providing short blocks, connections to the open space areas and proposed school site. The plan had active recreational open spaces that could accommodate a variety of uses. The open space plan was approved by the Design Review Board, including low light bollards along the pedestrian areas. To the northern boundary of the project was a design that opened the neighborhood to a 20-50â?? buffer and a very wide landscape buffer for Ray Road. The streetscape design for these areas were under design and the applicant had agreed to comply with those standards, which will provide a multiuse trail with special lighting and paving. The landscape tract to buffer the residential development offered between a 42-100â?? landscape buffer. In addition to this, she stated that there would be a 80â?? right of way. They had complied with all the engineering, fire and school requests for this project. They had designed a unique traffic circle that accommodated large trucks for turning radiuses. They have complied with the Williams Gateway Study for construction and notification to the public for being in the over flight area number three.

She referred to the Staff Report and stated that the applicant had already complied with on the plat: b., d. and e. The others were engineering stipulations, which are minor to this kind of project. She stated that Staff fully supported this project. She pointed out that the Commissions review and potential approval was a little out of sync. However, there was acknowledgement from the Town Council that the project was on track, there was no opposition, recommendation from Zoning and approval from the Design Review Board. Therefore, she stated that if they did approve the preliminary plat it would be contingent on the Councils approval on March 20 of the zoning.

Chairman Kohlhoff stated that it was a very straightforward project with a lot of merit. He added that they had seen it at a Working Session and they had been through it many times. He asked if the applicant would like to state something.

The applicant didnâ??t have anything to add.

Town Attorney Schwab asked to take a short break to look at something regarding the notice on this item before the Commission took action.

Chairman Kohlhoff stated that they would take a short 5 minute break.

Chairman Kohlhoff called the meeting back to order.

Town Attorney Schwab stated that it had come to her attention that under the new process that this Commission now had final approval of preliminary plats. These items need to be advertised for a public hearing and this item was not advertised for a public hearing. She recommended that they table this item until it could be advertised appropriately.

A motion was made by Commissioner Dodge, seconded by Vice Chairman Krueger, to table item S549.

Motion Carried 7-0.

Discussion of Non-per Capita Water Conservation Ordinance.

A motion was made by Commissioner Dodge, seconded by Commissioner Preiss, to table the discussion of Non-per Capita Water Conservation Ordinance.

Motion Carried 7-0.

PUBLIC HEARING

UP01-1 - Approval of a Use Permit to allow a tobacco/smoke shop (Cigarettes Cheaper) in a PSC-1 (Planned Shopping Center) zoning district, by the name of Greenfield Village, at the southwest corner of Baseline and Greenfield Roads.

Planning Manager Cadavid stated that this item was a Use Permit that was coming back to the Commission for further discussion. The item presented was Cigarettes Cheaper that as a use required a Use Permit to be able to operate in a planned shopping center by the name of Greenfield Village, at the southwest corner of Baseline and Greenfield Roads. She stated that Staff did the original evaluation and concluded that the Use Permit application met the General Plan conformance with its policies. The project based on the Use Permit compatibility standards met the findings and the requirements not to be a detrimental use to persons residing or working in the vicinity. She explained that the compatibility of standards had to do with ingress and egress, off street parking and refuse areas, utility services availability, adequate screening and buffering. Hours of operation criteria were also met for the Use Permit.

Planning Manager Cadavid stated that in the previous meeting held by the Commission, they discussed information that they had requested the applicant to supply. One item was for the applicant to submit a map showing the physical distance to the proposed use to existing public or private schools. She noted that this exhibit was a part of their packet on page 13. She showed a visual aid of the proposed site and described the schools distances. The applicant also supplied for the Commission a very extensive description of their operation and conveyed a sense of confidence in the way they operated their business in other communities. She added that the school district maintained their position of opposing this use. The Staff did not receive any input when they had prepared the packet and only recently received three e-mails of residential opposition. Ms. Cadavid concluded her presentation and asked for questions from the Commission.

Commissioner Beene asked if there was any Arizona Revised Statute prohibiting the selling of cigarettes within a certain proximity of a school.

Town Attorney Schwab stated that there was not.

Commissioner Beene referred to the criteria for evaluating a Use Permit, read the second condition “The project will not be detrimental to persons residing or working in the vicinity based on Compatibility Standards” and asked if they consisted of the items listed in the packet regarding ingress/egress, etc.

Planning Manager Cadavid stated that was correct and that they were physical items that may cause physical detriment to values of the property, congestion of circulation, inability to provide proper services, screening elements and hours of operation.

Chairman Kohlhoff stated that he would open the Public Hearing and noted that he had e-mails that were received from Cynthia Hawkinson, Julie Bader, and Linda DeJeu. He added that there were five people in attendance that filled out a slip, four in opposition and one in favor of this item.

Chairman Kohlhoff asked the applicant to come forward.

David Pensele, with Cigarettes Cheaper came forward. He started by apologizing for the build out on the site and mentioned that on 8/21/00, they were told that they had obtained all the proper permits. He added that on 11/16/00 they received a notice that code enforcements notified them that they needed a Use Permit. Steve Wallace of the Code Enforcement offered to waive a three-week application since they had been misled about the Use Permit. The Building Department apologized to them in November 2000 for not notifying them of this Permit. He added that the table of permitted uses sent to them by Wendy Rocco didnâ??t contain a statement about tobacco use permits. After they notified her of this, she sent a revised page 47 and stated that since this law was just passed, all the tables had not yet been updated. He stated that even Code Enforcement didnâ??t have the right information.

Russell Marcellus, 6245 N. 24th Parkway #211, Phoenix with Marcellus & Associates came forward. He stated that he was the architect on the project. He explained that he was contacted in late November when they found out that they could not open this store without a Use Permit. He showed a visual aid of the location map that was in their packets. He stated that he identified each school site around the proposed store and indicated the distances to different schools in the area. He stated that there was a Bashaâ??s prior to the Cigarettes Cheaper store that a Pioneer Elementary student would need to pass by before they would get to their store. He added that the student would most likely try to buy the cigarettes in this store, which would be a more likely place to not get caught purchasing them, than the proposed Cigarettes Cheaper location. He also reminded the Commission of the information in their packets that showed how they enforce their policy of not selling any tobacco products to anyone under the age of 18.

David Pensele stated that kids have no reason to shop in their stores because it was an adult only environment. He added that they donâ??t sell anything that would attract kids into their stores. He said that since they only sell cigarettes, they couldnâ??t sell to kids or they wouldnâ??t continue to be in business.

Russell Marcellus stated that in the Commissionersâ?? packets there was information regarding their hiring policies and enforcement of the laws against selling to minors. He added that Cigarettes Cheaper as a corporation supported legislation that would force the sale of tobacco products to be licensed.

Commissioner Preiss asked if they were aware of the Learning Center that was directly to the north of the center because she didnâ??t see it on the map. In addition, she asked what other stores were in this strip mall.

Russell Marcellus stated that he was aware of this school and listed some of the other stores in the center.

Commissioner Preiss stated that the other stores appeared to be family oriented businesses in this center. She asked if they sold any tobacco paraphernalia.

David Pensele stated that he did not sell any additional paraphernalia. He added that they were next to lots of Blockbusters and similar stores throughout the country.

Russell Marcellus stated that the section of the strip center that the proposed store would be placed was more of an adult area, consisting of a dry cleaner and insurance company.

Commisioner Peterson asked if the cigarettes were sold by the pack or carton.

David Pensele stated that they were sold by the pack and carton.

Commissioner Strom asked what was on the immediate pad to the north of this site.

Russell Marcellus stated that it was undermined at that time what would go into this pad. The last business that looked at this site was Brakes Plus. He stated that a fast food restaurant could go there, but it was undetermined at that time.

Commissioner Strom stated that on page 8 and 9 that they approved of the preliminary plat showed a drive through and it was talked about as being a fast food pad. He added that if they hadnâ??t determined what that vacant parcel would be, how could he ensure that there wonâ??t be children and related services that could go there.

Commissioner Strom asked if the cigarette products were locked behind the counter.

David Pensele stated that they were not locked.

Commissioner Strom stated that Mr. Marcellus made a comment that Bashaâ??s did sell cigarettes easier to minors than the proposed site and asked him if he had tried to purchase cigarettes at this store.

Russell Marcellus stated that he had not.

Commissioner Strom stated that he went to the store and inquired how this was done and was informed that if someone wanted to purchase cigarettes that they would have to go to the attendant to unlock the case and check the personâ??s identification. He said that Mr. Marcellus made the comment that it would be easier to buy the cigarettes at Bashaâ??s than it would be at his store and he wanted to know the logic of this statement since they have their cigarettes secured behind locked gates and their cigarettes were open.

Russell Marcellus stated that if someone went to a Bashaâ??s store and they look older than they are, the attendants are not trained to spot the adolescent that shouldnâ??t be buying the cigarettes.

Commissioner Strom stated that their store policy stated that they card everyone up to 35 years old.

He asked what the target market was for the proposed store.

David Pensele stated that his target market was anyone of legal age that smoked.

Commissioner Strom asked David Pensele to estimate how many people in Gilbert would be purchasing products in the store.

David Pensele stated that in a normal environment they have between 1000-3500 customers a week.

Commissioner Strom asked if they would be primarily Gilbert residents.

David Pensele stated that there would be a lot of different residences, including people that travel into the city for work.

Commissioner Strom asked if the company was looking at other locations in Gilbert to locate their stores.

David Pensele stated that they were not at this time looking for another Gilbert location.

Commissioner Strom asked about the hours of operation for the store.

David Pensele stated that they were open from 9:30 a.m. to 7:30 p.m.

Chairman Kohlhoff asked Kelli Weatherby, who was opposed to the item, to come forward.

Kelli Weatherby, 1517 N Piedmont Dr., Gilbert came forward. She stated that she was there as a concerned homeowner and mother. She informed the Commission that Piedmont ran directly behind the Bashaâ??s shopping center and that her backyard to the proposed Cigarettes Cheaper was about 20-40â?? away. She stated that she was upset that her children would be playing in her backyard, which was right behind Cigaretteâ??s Cheaper. She called attention to item number 10 on the Use Permit Process Guide and Application. She stated that in this item, she was supposed to receive a letter regarding the Use Permit Application for Cigarettes Cheaper. She said that she had not received a letter. She said that as far as she could find out, there had not been anything written in the minutes for the Val Vista Lakes Association regarding a Use Permit. She said that there was not a sign posted prior to the meeting, but that she saw the sign after the last meeting. She said she heard there was a sign posted for a few days in January that disappeared and then reappeared after the last Planning and Zoning Meeting. When Bashaâ??s shopping center was approved, she was told that it would be a family oriented shopping center. She added that all the rest of the tenants in this center were family oriented and she was offended at Mr. Marcellusâ?? comment that this area of the shopping center where Cigarettes Cheaper would go would be a mature area. She said that her children were not mature - they were 11 and 14.

Diane Boman, 2320 E. Santa Rosa, Gilbert came forward. She stated that she was extremely disappointed that she had to show up at the meeting. She informed the Commission that they went through 10 site and Council neighborhood meetings in order to design this center. She stated that this was done because of the elementary school and the proximity of the neighborhood. She said that she had two meetings with Bashaâ??s and the Mayor of Gilbert to design a neighborhood child friendly center. She said that when she saw Cigarettes Cheaper stocking their shelves, she went in to ask if they had their permits. When she was told they did, she went to the Val Vista Lakes Homeowners Association to find out what had been written about this issue. Having past served as a President of the Association, she stated that she was aware that when things come in for a Use Permit, they take some action. Again, she was informed that nothing had happened. She said she didnâ??t get a letter informing her of this site nor did she see a sign proposing this use. She stated that when the center was designed, they worked closely with Bashaâ??s to design the center and that the Val Visa Lakes neighborhood was very child oriented. She added that they moved driveways and the medium strip to make the area more children friendly. She concluded that this entire area was designed for children and that she hoped the Commission would vote this down.

Commissioner Dodge asked if the neighborhood had pedestrian access to this center.

Diane Boman stated that they had access through the Jackson Properties and sidewalks all the way around the center.

Chairman Kohlhoff stated that Richard Stump was present and in opposition to this item but did not wish to speak.

Chairman Kohlhoff asked Keith Vaughan to come forward.

Keith Vaughan, 140 S. Gilbert Road, Gilbert with the Gilbert Public School District came forward. He stated that he wanted to bring up the School Districtâ??s opposition to this item. He added that this was a sad commentary to say that this was an adult only store area. He reminded the Commission of how they had talked to the developer to make a child centered shopping center. He stated that he told them that they would be opposed to any adult only stores and he was disappointed that this had come true. He informed the Commission that many of the children would be walking or riding their bikes past this center as many of their students live to the north of this proposed store. He added that the crosswalk was taken out because it was dangerous, but that students still used the crosswalk at the light. In teaching kids the “evils of smoking”, he felt that this sign that said Cigarettes Cheaper would not be the kind of an establishment they wanted located across from the elementary school. He said he wanted to supportive of commercial tenants going in to this development, as long as they were the right type of tenant. He concluded by asking the Commission to turn the item down.

Commissioner Dodge asked if there was a school crossing across Greenfield Road to Pioneer Elementary.

Keith Vaughan stated that was not, because of the busy traffic on Greenfield Road.

Chairman Kohlhoff asked if there was a statutory reason that the School District was opposing this item.

Keith Vaughan stated that there was not. He added that alcohol did have one, but smoking did not. He said that their opposition was based on their discussions with the developer stating that they would not allow this type of use, but that they had not put it in writing.

Chairman Kohlhoff asked Mike Evans to come forward.

Mike Evans, 280 W. San Remo Street, Gilbert came forward. He stated that he was in reluctant support of this item because if they were going to have these types of stores in the community, than a Use Permit was the appropriate way to regulate them. He stated that if the Commission chose to give this Use Permit, he believed the community would be protected in general from this kind of a use. He stated that they werenâ??t protecting the community from what this store was doing, because it was the single greatest preventable cause of death to smoke cigarettes. He stated that he really enjoyed the meeting last month because there were three Commissioners that argued from his head and three of them that argued from his heart. There were times that they would really want their heart to win, but their head knew that what they were doing was the legal or appropriate thing to do. He concluded by stating that he would support whatever they decided to say, after they voted with their conscious.

Commissioner Peterson stated that last month Mr. Evans had talked about the Youth Access Ordinance and asked him to explain this.

Mike Evans stated that this Ordinance was pioneered by Gilbert and that it was passed throughout the state and it was what Commissioner Strom witnessed when he went to Bashaâ??s to inquire about their cigarette sales. He said that it was required by every store that sells tobacco products in the Town for the tobacco products to be locked up and sold from a locked cabinet or sold from behind a counter where customers couldnâ??t have access to them. The only exception to this would be stores in which no one under the age of eighteen was allowed access. Therefore, Cigarettes Cheaper would fall into this category, since children are not allowed to go into this store, even with an adult. He added that the Southeast Valley Tobacco State program with Gilbert Police Department will be doing compliance checks to make sure that there werenâ??t tobacco sales to youth.

Chairman Kohlhoff asked Mr. Evans, since he was on the Council when the Ordinance was done to put in place a Use Permit for this kind of use, if they included markets in this.

Mike Evans stated that they did not.

Chairman Kohlhoff asked Mr. Evans if he felt that markets should have the same rules and regulations as these types of specialty stores.

Mike Evans stated that they should be treating like businesses alike.

Commissioner Strom asked about the discussions with the Chambers of Commerce about a plan to ban smoking in public places, like they do in Mesa. He asked for direction on this and stated that if they would be banning smoking in public places that they might be sending a mixed message by allowing the sale of cigarettes in this type of a specialty store.

Mike Evans stated that he worked in a smoke free office in Mesa and that they still sold cigarettes in this City. He added that prohibition didnâ??t work with liquor and that it wouldnâ??t work with tobacco either. He concluded that they needed to regulate and educate it. He stated that generally those who had the highest incomes, highest levels of educations and have the most number of kids smoked the least. This being Gilbertâ??s demographics, he didnâ??t feel that Cigarettes Cheaper would get a lot of Gilbert business.

Chairman Kohlhoff closed the public hearing and brought the discussion back to the Commission for discussion.

Commissioner Preiss stated that she would not be able to support this Use Permit. The main reason she was against this was because of the heavy involvement with the school and the community to develop this property in a family oriented way. The other stores in this center were child friendly and this proposed use would go against these as well. Just because the pad to the north wasnâ??t developed, disnâ??t mean that there wouldnâ??t be a child-centered business going in. In addition, just because the store next door is selling it, didnâ??t mean they needed to sell it here. Just like the gas station issue, when they decide not to put too many gas stations on an intersection, this issue is the same â?? there didnâ??t need to be too many sites that sell cigarettes. On page 6 of the packet, in the Use Permit item number two, asking if the proposed use would be detrimental, she felt that the neighborhood represented there that evening felt that it would be detrimental. In addition, the school also felt it would be detrimental to their students. She concluded that because of all these reasons, she would not support this Use Permit.

Commissioner Strom stated that he didnâ??t feel that they could regulate the morals in the community, but it differentiated itself from other cases about the free market in the sense that the primary core of this business is cheaper cigarettes. In looking at the ULDC, which has in all the uses allowed in Gilbert in the various zoning categories, that if this was stated as an adult shop, people would be packed outside the door opposing it. In a number of a uses that were considered detrimental to the community are required either to have a Use Permit or they are restricted into the C2 or industrial areas. Greenfield Road was considered a minor arterial, although most people would agree that it was a major arterial. One mile to the south, there was another case that came before the Commission to state the same concerns for their neighborhood. This center came after the Bashaâ??s approval and the neighborhoods asked specifically for a zoning stipulation to ban smoke shops. His concern was that if they approve this Use Permit, they would have to approve every one that comes through. He agreed that this site would be a detriment to the community and asked the Commission to vote against this permit.

Commissioner Dodge stated that the Commissioners were mixing two very separate issues when they talked about the use of tobacco products and the sale of cigarettes. He added that he had never heard or would expect to hear that the Council was intending to ban the sale of cigarettes in the Town. They may consider banning the use of cigarettes in public areas. He asked that they didnâ??t mix the sale of cigarettes, which they were talking about in this Use Permit, with the use of cigarettes. He said that although he was an anti-smoker, he needed to apply objective standards to the request. He stated that this property was zoned commercial back in 1984 as commercial and that all of Val Vista Lakes knew this was commercial when they moved into the community. He stated that the advantage to this store would be control. He read stipulation number two in the Staff Report, the Use Permit would be revoked if three citations were issued per year or five in three years, for selling to minors. He stated that there was not any other sale of cigarettes in the community with this control. He concluded that the best way to sell cigarettes would be in a tightly controlled environment and that he was impressed with the response of the applicant to the issues addressed at the last meeting and the way that they managed their business.

Commissioner Beene stated that they needed to examine the three objective criteria that was set out in the ULDC to see if they should grant this Use Permit. He stated that he agreed with Staffâ??s conclusion in that it was within compliance of the Townâ??s standards and requirements. The detriment to the community was based on the compatibility standards, which were outlined and have nothing to do with residents and their input on the issue. He added that there was not an ARS that prohibited the selling of cigarettes within a certain proximity to the school. He concluded that the criteria had been met with the Use Permit and he would support it.

Vice Chairman Krueger agreed with Commissioner Beene in what he said about the Use Permit. She added that this application for the Use Permit was not illegal and that they were not talking about a private property. In addition, there appeared to be an intense protection of the violation of minors in place and that the organization appeared to have an extreme attention to detail to their process and a concern for legislation that works for the good of the community. She stated that she had concerns about the control they were talking about within the community based on the Commissionersâ?? feelings. She concluded that she would support the Use Permit.

Commissioner Peterson stated that after meeting Mike Evans in the last meeting he told her that three of them voted from his head while the other three Commissioners voted from his heart and that she had struggled with this since the last meeting. In realizing that she voted from her heart, because she hated smoking, she stated that she needed to change her vote and support the Use Permit. She added that she agreed with the Commissioners that spoke in support of the Use Permit.

Commissioner Preiss stated that she was saddened by what she was hearing because she felt they were sending a strong statement to the community that said that when they worked with the community to develop a commercial corner in the neighborhood and they wonâ??t keep the promises that were made.

Chairman Kohlhoff stated that promises should be put in writing, making them contract law.

Commissioner Dodge stated that there was a difference between a Use Permit and Zoning. In Zoning, he stated that they were concerned about use and compatibility. In a Use Permit there is a very specific set of guidelines that they have to follow. This project was in conformance of the General Plan and it would not be detrimental based on compatibility standards, which were very specific. Finally he stated that the project was in conformance with the conditions, requirements and standards prescribed by the Code or Higher Authority. He concluded that he could not find anything in that list of very specific requirements that it didnâ??t meet.

Commissioner Strom stated that the Commission looked at the interpretation of the General Plan and the Code and that when they do have Use Permits and Zoning that there were a number of issues that you take into consideration. In the future, bars and other uses that fall into these same guidelines that the zoning is already vested where they have to look at the specific use.

A motion was made by Commissioner Stan Strom, seconded by Commissioner Susan Preiss, to deny UP01-1.

Motion failed 2-5. Ayes: Commissioner Preiss, Commissioner Strom; Nayes: Chairman Kohlhoff, Vice Chairman Krueger, Commissioner Dodge, Commissioner Peterson, Commissioner Beene.

A motion was made by Commissioner Dodge, seconded by Commissioner Beene, to approve UP01-1 subject to Staff stipulations, changing the expiration date to March 7, 2004 from the February 7, 2004 date that was listed in the Staff Report.

Motion Carried 5-2. Ayes: Chairman Kohlhoff, Vice Chairman Krueger, Commissioner Dodge, Commissioner Peterson, Commissioner Beene; Nayes: Commissioner Preiss, Commissioner Strom.

The Use Permit for Cigarettes Cheaper shall expire on March 7, 2004. The Planning Commission may grant extension of this time upon request of the Applicant

The Use Permit shall be revoked if three (3) citations are issued per year or five (5) in three years, for selling tobacco related products to minors (anybody under 18 years old).

Commissioner Dodge asked to be excused from the meeting.

Chairman Kohlhoff excused Commissioner Dodge and asked the Alternate Commissioner Monroe to join the Commission.

UP00-15 - A use permit to allow a drive through restaurant (Someburros), located at 1065 W Baseline Road at the southwest corner of Baseline Road and Stonehenge Drive. The existing zoning for the subject property is PAD (Planned Area Development) with underlying C-1 zoning (Neighborhood Commercial).

Senior Planner Fairbanks stated that this item was a request for Someburros Restaurant for a drive through facility. He explained that Someburros was a Mexican theme restaurant with 4,230 square feet of building area and 1,050 square feet of outdoor dining. The building was located on a one-acre pad site within the Cooper Crossing Shopping Center, located south of Baseline between Stonehenge Drive and Copper Road. The closest residential lot to the site was located approximately 220 feet south of the restaurant. He showed a visual aid and described the other facilities around Someburros Restaurant. He noted that the unusual thing about this use was that it wasnâ??t a typical drive-through facility in that there was not a menu board to order food and was strictly used as a pick-up window. The ULDC was pretty liberal in regulating drive-through restaurants and that it did meet the definition for a drive-through restaurant. Staff reviewed the application and this met the findings of the Use Permit and it was consistent with the findings of the General Plan and the regulations that Gilbert had regarding development and is not detrimental to the neighborhood. He concluded that Staff recommended approval of the Use Permit subject to Staff stipulations and that they had not received any opposition regarding this application.

Chairman Kohlhoff asked the applicant to come forward.

George Vasquez, 101 E. Baseline Road, Tempe the owner of Someburros Restaurants came forward. He stated that they had a location in Tempe with quality Mexican food. He explained that since they could not get the food prepared as quickly as you would need with a typical fast food restaurant, they require customers to call their orders in advance to picking them up at the drive through window. He added that they have been in business in this manner for fifteen years.

Chairman Kohlhoff opened the public hearing. Seeing that no one that wanted to come forward, he closed the public hearing.

Chairman Kohlhoff asked the Commission for discussion and action.

A motion was made by Vice Chairman Krueger, seconded by Commissioner Preiss, to approve UP00-15 subject to Staff stipulations.

Motion Carried 7-0.

Refuse enclosures shall be installed with opaque gates. Gates may not extend into drive aisles when open, and shall remain closed except when refuse container is being accessed.

All outdoor storage areas for materials, equipment, and service electrical systems (SES) shall be recessed or fully screened from view by a masonry wall of the same height of the cabinet and landscaping, or by projections of the building.

All S.E.S. panels, utility pedestals and vaults shall be painted to match the primary building color.

Roof-mounted mechanical equipment shall be fully screened by a parapet wall. The elevation of the parapet wall shall meet or exceed the elevation of mechanical equipment. To the extent permitted by law, satellite dishes shall be required to be fully screened from public view. Ground mounted mechanical equipment shall be fully screened from public view by a combination of a six (6′) foot high decorative solid wall and dense landscaping.

Except as modified herein, the project shall be developed in full compliance with the approved site plan marked Exhibit 2, and the set of construction documents, as approved by the Town of Gilbert, prior to the issuance of an occupancy permit.

Outdoor playing of music on the site shall be prohibited during the hours of 11:00 PM to 8:00 AM.

Z00-22 - Rezoning of an approximate 20-acre parcel from Maricopa County R-43 (Rural Residential) to Town of Gilbert PAD (Planned Area Development) with the underlying zoning classification of R1-7 (Single Family Residential), with an overall density of 3.21 dwelling units per acre. The subject property is generally located one-quarter (1/4) mile east of the southeast corner of Higley and Frye Roads.

Senior Planner Mangiamele informed the Commission on a little background of the project. He stated that the Commission just recently considered the rezoning for the adjacent Chandler Ginning Project. He showed a visual aid and described what was located around the proposed site. He stated that this was simply an infill considering that Chandler Ginning was recently approved and that this was only 20 acres. The area was designated as medium density residential within the Gateway Area Plan.

Mr. Mangiamele stated that some of the elements of the project that adhere to the elements of the Gateway Area Plan are convenient circulation, suitable area for open space with 3.56 acres, adequate recreation facilities as well as a pedestrian network. The project itself was providing for vehicular and pedestrian connections to the Chandler Ginning Project to the south as well as to Frye Road. This vehicular connection would further extend through Pecos Park I & II, to ultimately connect pedestrians to Pecos as well as Higley. The project did have a multiuse trail link.

Mr. Mangiamele described areas that were around this project and how the connections worked within the projects. With respect to local streets, he stated that the Gateway Area Plan talked about a lot of the residential areas keeping the same right of way for the local streets and that they were looking at decreased paving. Staff had worked with the applicant to meet the requirements for the street scene and he explained what this entailed.

In addition, Mr. Mangiamele stated that they had proposed some incentives for side entry garages by way of reduced front setbacks. These were actually supported by the Gateway Area Plan. He explained that the Plan discouraged staggering of front yard set backs in place of reduced front yard setbacks for side entry garages and living areas that are out on the street.

He explained that with respect to zoning, the applicant was requesting R1-7 underlying PAD. With the 63 lots, they were not asking for any deviation on lot width or lot depth and that their minimum lot area was 7,700 square feet. They were requesting deviations from front yard set backs, and Staff did support this based on the elements of the Gateway Area Plan, recommending more incentives for reduced front yard setbacks. One additional deviation would be a 45% lot coverage for single story. Staff didnâ??t see that as a concern due to some of the generous amounts of open space, 17.8%, and that this would help in providing a potential for more of a diverse streetscape and more housing project diversity.

Mr. Mangiamele explained how they had worked with the applicant in providing pedestrian linkage to the school in the area. With respect to the Bufferyard Policy, Staff felt that they were adhering to this even though it wasnâ??t even applicable due to the adjacent land uses and development with adequate transitional zoning. One change to the Staff Report would be that he received a memo from the school district stating that they didnâ??t have any concerns to the development.

Mr. Mangiamele stated that with the Gateway Airport, since the property was on the boundaries of the over flight areas of impact, the applicant had agreed to provide some public notification of the proximity to the airport. There had not been any public input in the neighborhood meeting in which no one attended. He concluded that Staff was recommending approval of rezoning this item subject to Staff stipulations.

Chairman Kohlhoff stated that he would like the Commission to get more information on the Gateway Area Streetscape Theme.

Planning Director Swanson stated that they would schedule a review of this at the next Study Session.

Chairman Kohlhoff asked the applicant to come forward.

David Udall, 40 W. 1st Street, Mesa came forward. He began by congratulating Alternate Commissioner Michael Monroe on his new appointment to the Commission. He stated that he was representing Mark Pugmire and Highland Ranch Construction. He stated that this was their fifth project and that they were agreeable to the Staffâ??s stipulations. He asked the Commission to vote in approval of this item.

Chairman Kohlhoff opened the public hearing. Seeing that no one that wanted to come forward, he closed the public hearing.

Chairman Kohlhoff asked the Commission for discussion and action.

A motion was made by Commissioner Strom, seconded by Alternate Commissioner Monroe, to approve Z00-22 subject to Staff stipulations.

Motion Carried 7-0.

Dedication to the Town of those portions of Frye Road that are adjacent to the Project. Said dedication of Frye Road shall extend 40 feet from centerline. Said dedication shall be completed at the time of the Final Plat recordation for the subject project or as required by the Town Engineering Department.

Construction of all the required off-site improvements to Frye Road that are adjacent to the project shall be completed prior to the final inspection approval for any dwelling unit for the project. Phasing plans for collector streets shall not be considered. Improvements shall include paving, sidewalks, utility extensions, landscaping, water and wastewater lines.

c. All landscape tracts, perimeter walls on all sides of the subdivision, entry monumentation located at the main entrance off Frye Road, and all open space areas and amenities shall be completed prior to the final inspection approval for any dwelling unit for the project

d. A master plan for water, sewer, and drainage for the project shall be reviewed and approved by the Engineering Department prior to the issuance of any permits. Wastewater study shall be submitted by the Developer for review by the Engineering Department and the study shall address design of planned sewer facilities for this Project and tributary facilities. Sewer buy-in shall be required by the Developer for tributary facilities.

e. Developer shall execute water and sewer buy-in agreements, whereby Developer shall pay for its proportionate share of water and sewer mains prior to Final Plat approval of any phase of the Project.

The developer shall execute a petition to create a streetlight improvement district for the collector and local streets within the Project.

Developer shall create a new HOA (Homeowners Association) for the maintenance and preservation of all common areas, landscaping and improvements within the open space areas, collector and local street rights-of-ways as shown on the Development Plan. This condition may be satisfied if the development causes the project to be annexed into an adjacent HOA which assumes these responsibilities. CC&Rs shall restrict developers from requiring turf in residential properties and shall not prohibit xeriscape in residential properties.

All retention basins shall contain natural design and meandering slopes. No ditch appearance shall be allowed. Open space shall be designated as pedestrian linkages/public access areas. Civil design shall allow for the placement of sidewalks and landscaping materials within open space/public access areas, in the size and amount noted on the landscape Plan.

The zoning for the project shall be R1-7 (Single Family Residential) as shown on the Development Plan. Said project shall be developed in conformance with the Townâ??s zoning requirements for said districts, except as modified by these Conditions. All residential lots shall comply with the following standards:

Zoning
No. of Lots/Units
Minimum Lot Area (sq. ft.)
Min. Lot Dimensions

R1-7
63 (100%)
7,700
70â?? x 110â??

Zoning
Building Setbacks
Building Lot Coverage ***

Front*
Side
Rear**
1 story/

2 story

R1-7
15â??/20â??
10â??/10â??
20â??
45%/40%

* Minimum front yard setback to face of garage is twenty (20â??) feet.

Minimum front yard setback for living areas, side entry garages, dwelling units containing detached garages, and/or dwelling units containing garages that are recessed by 20â?? or more from front of living area is fifteen (15â??) feet.

** There shall be a rear yard having a depth of not less than twenty-five (25) feet for single story and thirty-five (35) feet for two story when the rear yard is adjacent to an arterial street or a property zoned for commercial, industrial or agricultural.

*** Maximum lot coverage for one story dwelling units only. Two story dwelling units shall maintain 40%.

All side yards shall meet the “clear zone” requirements of Ordinance No. 803 as modified.

There shall be no similar front elevations on adjacent lots or across from one another. Elevations that merely change minor features such as window location or small architectural features are considered similar.

A minimum of a ten (10â??) foot wide landscape tract shall be provided for on the side of lots, siding onto local streets.

A minimum of a ten (10â??) foot wide landscape tract shall be provided for adjacent to all collector right-of-ways.

A minimum of a fifteen (15â??) foot wide landscaped tract shall be provided between the right-of-way and the property line on both sides of the main entrance drive to the subdivision.

Monumentation design, street lighting design, landscaping, perimeter wall design and open space amenities shall be reviewed and approved by the Design Review Board prior to the Planning Commissionâ??s action on the Preliminary Plat.

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