DRAFT MINUTES OF THE GILBERT TOWN COUNCIL IN REGULAR MEETING

TUESDAY, OCTOBER 24, 2006 AT 7:00 P.M.,
50 EAST CIVIC CENTER DRIVE,
GILBERT, ARIZONA

COUNCIL PRESENT: Mayor Berman, Vice Mayor Crozier, Councilmembers Krueger, Morrison (telephone), Presmyk, Skousen, and Urie

COUNCIL ABSENT: None

STAFF PRESENT: Manager Pettit, Assistant Manager Skocypec, Clerk Templeton, Attorney Goodwin, Acting Planning and Development Manager Edwards

CALL TO ORDER OF REGULAR MEETING

Mayor Berman called the meeting to order at 7:02 p.m.

INVOCATION AND PLEDGE OF ALLEGIANCE

Pastor Robert Doleshal of Desert View Baptist Church gave the invocation. Scouts led the Pledge of Allegiance and introduced themselves.

ROLL CALL

Clerk Templeton called roll and declared a quorum present.

PRESENTATIONS; PROCLAMATIONS

1. Presentation of Student Citizen of the Month Awards.

Mayor Berman and Councilmember Presmyk presented Student Citizen of the Month Awards for September to: Joseph Esquivel, Kolton Green, Devyn Shepherd, Jacob Riley Harwood, MacKenzie Koss, Cassie L. Aguilar, Mayra Tenorio, Kyle Johnson, Jacob Ballesteros, Quade Douglas, Luis Esquer, Brianna Porter, DaKota Ewart, Timothy Morrison, Kendell Becker, Dina Chevez, Diane Smith, Calvin” Wesley” Glover, Nicholas Massey, Kensley Finnell, Nadine Robinson, Osman Arredondo, Matthew Morina, Nicole Keefe, Kincaid Hamblin, Michael Cannatella, Britney Blackburn, Joshua Tubbs, Marina Bowman, Stephen M. Tunnicliff, Jake Shafer, Paradee Senamuen, and Mayra Lopez.

2. Presentation on the Central Arizona Project Pipeline to South Water Treatment Plant.

Councilmember Morrison joined the meeting by telephone.

Jim Rish, PinnacleOne Capital Projects Program Manager, explained that the Town of Gilbert and the City of Chandler have embarked on the largest pipeline project in the history of either community. Thirteen miles of pipeline will convey water from the Central Arizona Project Canal to the South Water Treatment Plant located on Octotillo and Recker Roads.

Dan Spitzer of Achen-Gardner, reviewed graphics of the project and explained the pipeline will ultimately convey 48 million gallons of water per day. Mr. Spitzer recognized the project team and reviewed the project schedule and the selection of the pipeline corridor. Jim Pembrooke of HDR explained involvement of various stakeholders and the evaluation process for the corridor study.

3. Administer Oaths of Office to Stuart Preston for the Arts Advisory Board and Anthony Panepinto for the Town of Gilbert, Arizona Self-Insured Trust Fund for Health Insurance Benefits.

Mayor Berman administered the Oath of Office to Stuart Preston for the Arts Advisory Board and Anthony Panepinto for the Town of Gilbert, Arizona Self-Insured Trust Fund for Health Insurance Benefits.

4. No Item.

5. COMMUNICATIONS FROM CITIZENS

Communications from Citizens were taken at the end of the meeting and the following spoke.

Jason Landeen, 3463 East Powell Way, Gilbert, reviewed the timeline, events, and medical report that were provided following the death of his brother. He expressed his disappointment in the performance of Gilbert Police Chief Dorn.

Sandra Landeen, 4073 East Lafayette, Gilbert, presented pictures of her son, who died last year. Ms. Landeen asked for Gilbert Police Chief Dorn’s resignation. Without permission Ms. Landeen approached the dais. Mrs. Landeen continued emotionally addressing Council regarding her son’s death and her opinion of non-action by Gilbert using profanity.

Councilmember Skousen expressed concern about the disruption caused by the Landeen’s and said it was time to get an injunction against the Landeen family to prohibit them from speaking at future Council Meetings.

Councilmember Urie explained he had asked that Communication From Citizens be moved to the end of the meeting because of the subject matter to be presented by the Landeen family and the presence of children for the Student Citizen of the Month.

Attorney Goodwin stated she would review the Open Meeting Law as it pertained to Communication from Citizens and provide information to the Council.

Vice Mayor Crozier complimented Gilbert Police Chief Dorn on his performance as the Chief of Police and his service in Iraq. Councilmember Krueger joined Vice Mayor Crozier in thanking
Chief Dorn for his patience and kindness.

Mayor Berman apologized for the language used and conduct by the Landeen family and expressed his concern for their grief and his disappointment in their behavior. Mayor Berman explained that the death of Michael Landeen was within the Mesa jurisdiction and jurisdictional issues prevent Gilbert from intervening in the case.

CONSENT CALENDAR

A MOTION was made by Vice Mayor Crozier, seconded by Councilmember Presmyk, to approve Consent Items 6, 9, 10, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, and 41; remove Items 7, 8, 11, 13, and 28 from the Consent Calendar; and add Items 53 and 54 to the Consent Calendar; appointing Bob Steiger and Chris Webb to the Town of Gilbert, Arizona Water Resources Municipal Property Corporation with terms ending January 1, 2008 and Patricia Krueger to the Town of Gilbert, Arizona Public Facilities Municipal Property Corporation with a term ending January 1, 2008. Motion carried 7-0.

6. ANNEXATION A03-4B - consider adoption of an Ordinance repealing Ordinance No. 1614 and approve the annexation of the Gilbert Road Right-of-Way between Chandler Boulevard and North of Galveston Street.

This item was approved with the Consent Calendar. Ordinance No. 1857 was adopted.

7. ANNEXATION A06-63 – consider adoption of an Ordinance approving the annexation of approximately 69.36 acres located at the southwest corner of Pecos Road and 140th Street. A public hearing was held on August 29, 2006.

This item was removed from the Consent Calendar in error.

A MOTION was made by Councilmember Urie, seconded by Councilmember Presmyk, to approve Ordinance No. 1858 approving the annexation of approximately 69.36 acres located at the southwest corner of Pecos Road and 140th Street. Motion carried 7-0.

8. AGREEMENT – consider approval of an amendment to the Ambulance Transportation Service Agreement with Southwest Ambulance extending the agreement period to March 31, 2007.

Councilmember Skousen asked for confirmation that this was an extension of the original agreement scheduled to end in November and if it would become open to bidding by other companies.

Gilbert Fire Chief DeWitt explained the extension provides the opportunity to negotiate a regional contract along with Mesa and Apache Junction, as the three contracts with Southwest Ambulance will end at the same time. A committee is discussing a regional contract and the findings will be presented to Council at a future meeting. There was a brief discussion on the response process and response time of Southwest Ambulance and the Gilbert Fire Department.

MOTION was made by Councilmember Skousen, seconded by Councilmember Presmyk, to approve an amendment to the Ambulance Transportation Service Agreement with Southwest Ambulance extending the agreement period to March 31, 2007. Motion carried 7-0.

9. INTERGOVERNMENTAL AGREEMENT AND GRANT – consider approval of an Intergovernmental Agreement with Homeland Security and authorize acceptance of a 2006 Homeland Security Grant in the amount of $102,195 for the Gilbert Terrorism Liaison Officer-Threat and vulnerability Assessment Program and authorize the Mayor to execute the required documents.

This item was approved with the Consent Calendar.

10. INTERGOVERNMENTAL AGREEMENT – consider approval of an Intergovernmental Agreement with the Chandler Unified School District for the design and construction of traffic signals associated with Perry High School, Projects TS102 and TS103, and authorize the Mayor to execute the required documents.

This item was approved with the Consent Calendar.

11. DEVELOPMENT AGREEMENT – consider adoption of a Resolution approving a Development Agreement with Harvey R. and Doreen T. McElhanon related to property located at 17131 East Williams Field Road and authorize the Mayor to execute the required documents.

Councilmember Presmyk asked what options Gilbert would have if the applicants do not comply. Attorney Goodwin explained Gilbert could either pursue enforcement of the contract or use the normal code compliance process. Ultimately, it would be a criminal violation if they were not in compliance. Councilmember Presmyk explained the property in question is a county island being annexed into the Town and does not comply with building and zoning codes in the county. He wanted assurance they would comply upon annexing to Gilbert. Councilmember Skousen asked for confirmation that the applicants were aware of the conditions and had agreed to the terms.

A MOTION was made by Councilmember Presmyk, seconded by Councilmember Urie, to approve Resolution No. 2724 approving a Development Agreement with Harvey R. and Doreen T. McElhanon related to property located at 17131 East Williams Field Road and authorize the Mayor to execute the required documents. Motion carried 7-0.

12. DEVELOPMENT AGREEMENT – consider adoption of a Resolution approving a Development Agreement with the Fulton Homes Corporation in an amount not to exceed $125,655 for Utility Improvements on Greenfield Road, Project WW062, and authorize the Mayor to execute the required documents.

This item was approved with the Consent Calendar. Resolution No. 2725 was adopted.

13. CONTRACT – consider approval of the appointment of James S. Dunham as a Judge in the Gilbert Municipal Court, approve a two-year contract beginning November 1, 2006, and authorize the Mayor to execute the required documents.

Mayor Berman discussed the importance of the Municipal Judge position and said he served on the committee. The committee is a lengthy process and the candidates were spectacular. The committee recommended three candidates who were reviewed by the current judges who selected Mr. Dunham.

Judge Dunham said this is a position of trust and if approved he hopes to earn the trust.

A MOTION was made by Councilmember Presmyk, seconded by Councilmember Krueger to the appointment of James S. Dunham as a Judge in the Gilbert Municipal Court, approve a two-year contract beginning November 1, 2006, and authorize the Mayor to execute the required documents. Motion carried 7-0.

14. CONTRACT – consider approval of a Project Manager/Construction Manager Services Contract with Wood, Patel, and Associates, Inc. in an amount not to exceed $766,888 for the Ocotillo Road Water Mains Project, Project WA050, and authorize the Mayor to execute the required documents.

This item was approved with the Consent Calendar.

15. CONTRACT – consider approval of a Design Build Pre-Construction Services Agreement with Hunter Contracting Co. in an amount not to exceed $1,075,240.33 for Phase 1 of the Ocotillo Road Water Mains Project, Project WA050, and authorize the Mayor to execute the required documents.

This item was approved with the Consent Calendar.

16. CONTRACT – consider finding that no written notices objecting to the Town’s acts or proceedings were filed within 15 days of the notice of award and authorize the delivery of a contract to All-The-Scapes, LLC for Parkway Maintenance Improvement Districts Landscape Maintenance for FY 2006-07 for PK88-7 and PK88-9 and authorize the Mayor to execute the required documents.

This item was approved with the Consent Calendar.

17. CHANGE ORDER – consider ratifying that Amendment No. 2 to the Design-Build Services Agreement with Hunter Contracting Co. in an amount not to exceed $11,850,116.30 for the Phase 3 (GMP-3) Construction Water Treatment Plant Expansion – 45 MGD, Project WA025, approved by the Gilbert Town Council on October 10, 2006 included grant funds in the amount of $257,000 as follows:

a) Grant funds accepted on December 20, 2005 in the amount of $200,000 from the Urban Area Security Initiative be designated for construction of security fencing enhancements at the Water Treatment Expansion Project; and

b) Accept 2006 Urban Area Security Initiative Grant funds in the amount of $57,000 and designate that funds be used for construction of security fencing enhancements at the Water Treatment Plant Expansion Project.

This item was approved with the Consent Calendar.

18. CHANGE ORDER – consider approval of Change Order No. 1 to the Architectural Engineering Services Agreement with NFRA, Inc. in the amount of $18,011 for the design of the Scalloped Streets East Project, Project ST042, and the Baseline and Recker Roads 16-inch Water Line Projects, Project WA029.

This item was approved with the Consent Calendar.

19. CHANGE ORDER – consider approval of Change Order No. 1 to the Construction Manager at Risk Construction Services Contract with Hunter Contracting Co. for a contract extension of 30 days for the Gilbert Commons Lift Station Upgrade, Project WW008.

This item was approved with the Consent Calendar.

20. CHANGE ORDER – consider approval of Amendment No. 1 to the Design-Build Services Agreement with Achen-Gardner Engineering, LLC in the amount of $4,966,433 for Phase 2 of the Central Arizona Project Pipeline to the South Water Treatment Plant, Project WA023.

This item was approved with the Consent Calendar.

21. CHANGE ORDER - consider approval of Change Order No. 5 to the construction contract with MMC of Nevada in the amount of $106,219.10 for the Gilbert Road Improvements Project-Knox to Frye Roads, Project ST016.

This item was approved with the Consent Calendar.

22. PURCHASE – consider approval of the purchase of security cameras and domes from APL Access and Security, a Sole Source Provider, in an amount not to exceed $14,500 from Urban Area Security Initiative Grant Funds for the Municipal Building.

This item was approved with the Consent Calendar.

23. PURCHASE – consider approval of the purchase of a Hazardous Materials Meter from United Fire Equipment Company, a Sole Source Provider, in an amount not to exceed $21,500 from Urban Area Initiative Grant Funds for the Fire Department.

This item was approved with the Consent Calendar.

24. PURCHASE – consider approval of the purchase of Tactical Blankets from Instant Armor, Inc., a Sole Source Provider, in an amount not to exceed $16,800 from Buffer Zone Protection Program Grant Funds for the Police Department.

This item was approved with the Consent Calendar.

25. PURCHASE – consider approval of the purchase of air-conditioning units from Base-X, a Sole Source Provider, in an amount not to exceed $14,000 from State Homeland Security Grant Program Funding to support Decontamination Project.

This item was approved with the Consent Calendar.

26. PURCHASE – consider waiving the bidding requirements and approve the purchase of Ballistic Shields from Universal Police Supply Company in an amount not to exceed $16,800 from Buffer Zone Protection Program Grant Funds for the Police Department.

This item was approved with the Consent Calendar.

27. NO ITEM.

28. PUBLIC SAFETY – consider authorizing the Manager to conduct a pilot test for signal interrupters for marked Police Patrol Vehicles, and the transfer of $40,000 from General Fund Contingency to cover costs.

Councilmember Skousen inquired if there were police departments of other municipalities using this equipment and expressed concerns because of the size of equipment moving through traffic. He asked if staff was aware of other communities that tested the equipment and decided against utilizing it. Manager Pettit explained that Gilbert has used signal interrupter technology for emergency response and was familiar with its use. Traffic had advised that no other community uses the interrupter technology for police and the utilization of the technology is rare across the country. Discussion continued on which surrounding community fire departments used the technology, possible traffic congestion upon use of the interrupters, and safety issues.

Manager Pettit confirmed for Mayor Berman that the $40,000 was a one-time charge and that Gilbert would own the equipment whether or not staff decided to utilize the interrupters beyond the test period.

Councilmember Urie explained that there had been at least two incidents at intersections where the lights delayed emergency vehicles. He expressed surprise that squad cars were not so equipped and that $40,000 appeared to be a cost savings versus the cost of $26,000 per a fully equipped squad car.

Police Chief Dorn reviewed a recent accident at an intersection involving a police vehicle. The officer came to a complete stop and cleared traffic while the light was still green. Another car went around traffic and hit the patrol car. Chief Dorn said Gilbert’s emergency response policy is quite restrictive and police only use lights and sirens when there is a life-threatening situation or the need to clear an intersection quickly to make room for emergency response vehicles.

Mayor Berman asked about a system that turned all lights red and stopped all traffic. Chief Dorn explained that system did allow traffic to clear for emergency vehicle movement in the direction the vehicle is going.

A MOTION was made by Councilmember Skousen, seconded by Councilmember Presmyk, to authorize the Manager to conduct a pilot test for signal interrupters for marked Police Patrol Vehicles, and the transfer of $40,000 from General Fund Contingency to cover costs. Motion carried 7-0.

29. FINAL PLAT S585 – consider approval of the block plat for Mountainwood Phase 2 located at the southwest corner of Riggs Road and 164th Street.

This item was approved with the Consent Calendar.

30. FINAL PLAT S585D – consider approval of the final plat for Mountainwood Parcel D located at the southwest corner of Riggs Road and 164th Street.

This item was approved with the Consent Calendar.

31. FINAL PLAT S585F – consider approval of the final plat for Mountainwood Parcel F located at the southwest corner of Riggs Road and 164th Street.

This item was approved with the Consent Calendar.

32. FINAL PLAT S585G – consider approval of the final plat for Mountainwood Parcel G located at the southwest corner of Riggs Road and 164th Street.

This item was approved with the Consent Calendar.

33. FINAL PLAT SP1066 – consider approval of the final plat for Rome Towers located at the northwest corner of Pecos Road and Rome Street.

This item was approved with the Consent Calendar.

34. MAP OF DEDICATION SP985 – consider approval of the amended Map of Dedication for Higley Road and Banner Gateway Drive at Banner Gateway Medical Center located at the southwest corner of Higley Road and US-60.

This item was approved with the Consent Calendar.

35. MAP OF DEDICATION S1065 – consider approval of the Map of Dedication for Chaparral Elementary School located east of the northeast corner of Higley and Frye Roads.

This item was approved with the Consent Calendar.

36. STREETLIGHT IMPROVEMENT DISTRICT 06-15 – consider adoption of a Resolution creating Streetlight Improvement District 06-15 for the Bridges at Gilbert, Phase 1 and ordering the improvements.

This item was approved with the Consent Calendar. Resolution No. 2726 was adopted.

37. PERSONNEL – consider authorizing the reallocation of a Heavy Equipment Operator (Grade 9 $32,622 to $45,671) to Parts Acquisition Technician (Grade 9 $32,622 to $45,671) in Fleet Maintenance.

This item was approved with the Consent Calendar.

38. PERSONNEL / RISK MANAGEMENT – consider acceptance of the Quarterly Loss Settlement Report for the period ended September 30, 2006.

This item was approved with the Consent Calendar.

39. SPECIAL EVENT – consider authorizing the use of the Gilbert Civic Center Grounds and facility and provide staff and support costs for the 2006 Veteran’s Day Observance on November 9, 2006.

This item was approved with the Consent Calendar.

40. BOARDS AND COMMISSIONS – consider the appointment of Guy Mullins as the Arizona State University Representative on the Gilbert Educational Cable Access Governing Board with a term ending March 19, 2008.

This item was approved with the Consent Calendar.

41. MINUTES – consider approval of the minutes of the Regular Meeting of October 10, 2006.

This item was approved with the Consent Calendar.

PUBLIC HEARINGS

Mayor Berman opened the public hearing for items 42, 43, 44, 47, 48, 50, and 52. No one wished to speak and Mayor Berman closed the public hearing.

A MOTION was made by Councilmember Presmyk, seconded by Councilmember Krueger, to approve public hearing items 42, 43, 44, 47, 48, 50, and 52. Motion carried 7-0.

42. LIQUOR LICENSE – conduct hearing and consider approval of a Series 12 Restaurant Liquor License for Great Wall Chinese Restaurant located at 2473 South Higley Road #106.

This item was approved with the Public Hearing vote.

43. LIQUOR LICENSE – conduct hearing and consider approval of a Series 06 Bar License for Brunswick Zone – Gilbert located at 1106 South Gilbert Road.

This item was approved with the Public Hearing vote.

44. ANNEXATION A06-66 – conduct hearing on the annexation of approximately 156.69 acres located at the southeast corner of Val Vista Drive and San Tan Boulevard.

This item was a public hearing only. No action was taken.

45. ANNEXATION A06-75 – conduct hearing on the annexation of approximately 30.25 acres located at the southeast corner of Mesquite Street and Lindsay Road.

Mayor Berman opened the Public Hearing. Dick Rambo, 1141 East Rawhide, Gilbert, explained this was the second petition filed for this neighborhood. The first petition was withdrawn because it was apparent there would not be sufficient signatures to annex the entire neighborhood of Eldorado Rancho, Unit 1. Mr. Rambo said they waited for the court decision on the status of fire services for county islands before filing the second petition in hopes that more of his neighbors would sign the petition for annexation when they realized they would not have fire service. Mr. Rambo said the problem of large areas without fire service will only be solved because of a tragedy and he would like to avoid that. He explained there would be enough signatures for the annexation request and the petitioners were requesting that Gilbert respond to emergencies before the annexation process is completed.

Vice Mayor Crozier expressed disappointment that although there are at least two families that would like to annex, annexation laws and opposition by neighbors prevent them from doing so. Mayor Berman and Vice Mayor Crozier commended Mr. Rambo on his past service on the Gilbert Fire Department and for the City of Tempe. No one else wished to speak and Mayor Berman closed the public hearing.

This item was a public hearing only. No action was taken.

46. ANNEXATION A06-90 – conduct hearing on the annexation of approximately 1.95 acres located south and east of the southeast corner of Elliot and Greenfield Roads.

Mayor Berman opened the public hearing. No one wished to speak and Mayor Berman closed the public hearing.

A request to speak was submitted by Eric Cassinat, 11426 South 162nd Street, Gilbert, in favor of the annexation but he did not address the Council.

This item was a public hearing only. No action was taken.

47. ZONING Z05-20A: conduct hearing and consider adoption of an Ordinance amending the Zoning Code of Gilbert, Arizona, (Land Development Code) Chapter I Zoning Regulations, Division 4 General Regulations, Article 4.1 Site Regulations, Section 4.109 Fences, modifying the separation fence requirements for residential and nonresidential uses; and an amendment to Chapter I Zoning Regulations, Division 5 Administration, Article 5.1 Planning Administration, Sections 5.102 Town Council, 5.103 Planning Commission, and 5.106 Zoning Administrator, to authorize the Planning Commission to modify the separation fence requirements, and to authorize the Town Council to hear appeals from Planning Commission decisions on modifications of separation fence requirements, and to authorize the Zoning Administrator to initiate proceedings to revoke a modification of separation fence requirements.

This item was approved with the Public Hearing Vote. Ordinance 1859 was adopted.

48. ZONING Z06-68 – conduct hearing and consider adoption of an Ordinance rezoning approximately 78.76 acres for Beebe Business Park located at the northwest corner of Recker and Warner Roads from Maricopa County Rural-43 to 12.18 acres of Community Commercial (CC) and 66.58 acres of Business Park (BP).

This item was approved with the Public Hearing vote. Ordinance No. 1860 was adopted.

49. ZONING Z06-72 – conduct hearing and consider approval of the findings and adoption of an Ordinance rezoning approximately 77.48 acres located east of Recker Road and 2,000 feet north of Warner Road from Maricopa County Rural-43 to Single Family/Detached (SF/D), Single Family/Detached with PAD Overlay, and Multifamily/Low (MF/L) with PAD Overlay.

Mayor Berman opened the public hearing. No one wished to speak and Mayor Berman closed the public hearing.

Councilmember Morrison asked if the property is in the over-flight area of the Williams Gateway airfield, or would it be close because there were discussions about noise mitigation. He also asked if there would be adequate on street and visitor parking.

Senior Planner Veljic explained the area was not in the over-flight area and sound deadening features were not required outside the over-flight area. All roads are public to provide for adequate on-street parking and each home would have two spaces within the garage, so they would more than meet the requirements of the zoning code. Senior Planner Veljic explained the development would include two road width standards. One would be a 28-foot back of curb with parking on the one side and no homes on that side, and the other would be a 33-foot back of curb with parking on both sides. Both configurations meet fire code requirements to allow for movement of large emergency response equipment. Senior Planner Veljic advised that the high density was part of the General Plan and not a request by the developer. Councilmember Urie and Councilmember Morrison explained the General Plan designation applied to the request and the more restrictive setbacks in a Planned Area Development.

Mayor Berman opened the Public Hearing. No one wished to speak and Mayor Berman closed the Public Hearing.

A MOTION was made by Councilmember Krueger, seconded by Councilmember Urie, to approve the findings and adopt Ordinance No. 1861 for Z06-72 amending approximately 77.48 acres located east of Recker Road and 2,000 feet north of Warner Road from Maricopa County Rural-43 to Single Family/Detached (SF/D), Single Family/Detached with PAD Overlay, and Multifamily/Low (MF/L) with PAD Overlay. Motion carried 7-0.

50. ZONING Z06-98 – conduct hearing and consider approval of the findings and adoption of an Ordinance rezoning approximately 69.4 acres located east of the southeast corner of Gilbert and Pecos Roads from Maricopa County Rural-43 to Business Park (BP).

This item was approved with the Public Hearing vote. Ordinance No. 1862 was adopted.

51. AP06-6 – conduct hearing and consider the appeal to the Planning Commission’s decision of approval of UP05-19 and UP06-10, Use Permits for a fueling facility and a drive thru restaurant (Jack in the Box) respectively proposed at the northeast corner of Pecos and Gilbert Roads on tract JJ of the Allen Ranch PAD. The appeal is based on intensity of the uses: excessive hours of operation, noise and extra traffic at off-hours.

Principal Planner Cadavid advised that the Planning Commission adopted the findings and approved the application for two Use Permits at the hearing of September 6, 2006 subject to modified conditions extending the hours of operation for the fueling facility to 24 hours and for the drive-thru Jack in the Box from 5:00 a.m. to midnight, Sunday through Thursday and 5:00 a.m. through 1:00 a.m., Friday and Saturday. The Use Permits met the findings set forth in the Land Development Code however; the developer chose to be reviewed for the list of rights under the Unified Land Development Code. The appeal was based on the extended hours of operation approved by the Planning Commission and the additional traffic generated by the extended hours.

Councilmember Urie asked if the Planning Commission’s recommendation included Condition Nos. 2 and 4, which show strikethroughs, under the Planning Commission Recommendation. Principal Planner Cadavid explained the recommendation included Condition Nos. 1 and 3 only.
Discussion continued on the hours of operation for the auxiliary car wash, and the proximity of homes to the 24-hour operation of the car wash and fueling facility. Attorney Goodwin advised that grounds for the appeal were not related to the car wash because the car wash did not require a Use Permit; therefore, only the subject of the appeal is what should be discussed. Councilmember Urie clarified that Gilbert’s Noise Ordinance would govern the operation and there would be consequences if noise exceeded allowable noise decibels.

Mayor Berman opened the Public Hearing. Pinkesh Shah, appelant, 66 East Julian Drive, Gilbert, informed Council that the zoning for the area is Neighborhood Commercial and the Land Development Code (LDC) limits the hours of operation to from 6:00 a.m. to 11:00 p.m. within this zoning designation. Mr. Shah requested that Council use the LDC guidelines and scrutinize the reasons for extending the hours when considering their decision.

Mr. Shah reviewed charts and reports of requests for police service in Tempe and Gilbert in retail areas. Councilmember Skousen stated that the graphs read the same as they did the 1960s and 1970s, and did not indicate that business activity was the sole reason for illegal activity. Discussion continued on the reasons for requested police service versus development and growth of the Town. Councilmember Urie reminded Mr. Shah that the appeal of two Use Permits, and noise mitigation were the only subjects open for discussion. Attorney Goodwin advised that Gilbert Code restricts noise inside of a residential or commercial structure to 45 decibels from 10:00 p.m. to 5:00 a.m. and 55 decibels between 5:00 a.m. to 10:00 p.m. for more than 15 minutes and more than two times in one hour. Councilmember Urie explained to Mr. Shah that if the facility exceeded those requirements, he would have a basis for a grievance. Attorney Goodwin advised Council that the LDC did limit hours of operation in a Neighborhood Commercial zoning area unless approved by a Use Permit. Mr. Shah said he found similar facilities in Gilbert not located in residential areas that closed by 11:00 p.m. or 12:00 p.m. during the week and possibly weekends as well. Mr. Shah requested that Council consider the LDC guidelines regarding hours of operation and provide a screening wall to mitigate the noise. Discussion continued on the noise level of traffic versus business operation and the retail development anticipated in the area, which would generate more traffic and road noise. Although other drive-through facilities in the community have different hours of operation, it was not determined if the owners set the hours according to the amount of business generated or in response to requests by nearby residents.

Councilmember Krueger noted for the applicants that planned commercial development in the area would generate road noise, which would exceed noise generated by the proposed facility. Vice Mayor Crozier reviewed similar projects in Gilbert and similar concerns voiced by residents, which never materialized. Attorney Goodwin advised that Use Permits could be revoked if conditions of the Use Permit or Gilbert Code have been violated.

Mayor Berman opened the Public Hearing. Russ Sult, 96 East Mary Lane, Rosemarie Bocchino, 107 East Julian Drive, Vincent Bocchino, 107 East Julian Drive, and George Josephs, 67 East Mary Lane, registered against approval of the Use Permits but did not address Council.

Bonnie Weber, 248 East Julian Drive, explained she was speaking in support of the residents adjacent to the planned facility and their concerns about hours of operation. Ms. Weber said her main concern was the number of drive-through facilities planned for the surrounding area. She asked what would stop Jack in the Box from requesting additional hours of operation if the other drive-through facilities chose to operate 24 hours per day. Councilmember Krueger explained the Use Permit would be permanent. Attorney Goodwin stated the Use Permit would be permanent as long as the applicant complied with the code under which the Use Permit was granted.

Louis DePalma, 124 East Mary Lane, explained the Allen Ranch Home Owner Association attended three neighborhood meetings and spent many hours working with staff and the developer to resolve issues expressed by the residents. Mr. DePalma expressed concerns about the car wash hours of operation and an over abundance of drive through and fueling facilities in the area. He suggested adding a condition to the Use Permit limiting it to a one-year period and at that time if business does not warrant the extended hours, the developer could modify the hours of operation. There was a brief discussion about the number of drive through and fueling facilities and their proximity to the subject project.

Peter Blied, developer, 1234 East 17th Street, Santa Ana, CA, explained they had invested over a year developing the proposed plan. They worked with the Planning Commission, staff, and the Home Owner’s Association to address concerns. The project evolved over the year to resolve issues raised by residents and staff and it is a different project than was originally proposed. They made concessions limiting hours of operation, new technology allowing a silent order system during late hours, and limited beer and wine sales until midnight only. Mr. Blied stated that noise was a main concern of the residents but a noise study illustrated that road noise drowned out all other noises. However, they agreed to raise the screening wall to nine feet if support under the wall could accommodate the extra weight. Mr. Blied said they were happy with the negotiation process and the Planning Commission’s approval on September 6, 2006 and requested that Council deny the appeal.

Discussion continued about the configuration of the facility, proximity of homes, anticipated commercial development in the area, and hours of operation of similar facilities. The consensus of the Council was to deny the appeal and uphold the approval of the Use Permits by the Planning Commission. Council thanked the residents for their hard work and said they accomplished a great deal, which resulted in a better project.

A MOTION was made by Councilmember Krueger, seconded by Councilmember Presmyk, to accept the staff recommendation and deny the appeal.

Attorney Goodwin clarified that the motion was to uphold the decision of the Planning Commission and deny the appeal and Council so stipulated.

Motion carried 7-0.

52. CODE OF GILBERT – conduct hearing and consider adoption of an Ordinance amending the Code of Gilbert Chapter 42 Offenses and Abatement of Public Nuisances, Article VIII Abatement of Public Nuisances, by amending Section 42-306 Violations related to limiting civil sanctions imposed by Chapter 42 to public nuisance offenses.

This item was approved with the Public Hearing vote. Ordinance No. 1863 was adopted.

ADMINISTRATIVE ITEMS

53. BOARDS AND COMMISSIONS – consider the appointment of two individuals to the Town of Gilbert, Arizona Water Resources Municipal Property Corporation with terms ending January 1, 2008.

This item was approved with the Consent Calendar. Bob Steiger and Chris Webb were appointed to the Town of Gilbert, Arizona Water Resources Municipal Property Corporation with terms ending January 1, 2008

54. BOARDS AND COMMISSIONS – consider the appointment of one individual to the Town of Gilbert, Arizona Public Facilities Municipal Property Corporation with a term ending January 1, 2008.

This item was approved with the Consent Calendar. Patricia Krueger was appointed to the Town of Gilbert, Arizona Public Facilities Municipal Property Corporation with a term ending January 1, 2008

55. BOARDS, COMMISSIONS, AND COMMITTEES reports from Council Liaisons for the:
a) Council subcommittee on Board and Commission application screening, interview, and selection
b) Other Council subcommittees
c) Arts Advisory Board
d) Building and Construction Regulations Code Board of Appeals
e) Community Activities Board
f) Congress of Neighborhoods Committee
g) Design Review Board
h) Economic Development Advisory Board
i) Gilbert Educational Cable Access Governing Board.
j) Human Relations Commission
k) Mayor’s Youth Advisory Committee
l) Parks and Recreation Advisory Board
m) Planning Commission
n) Redevelopment Commission
o) Gilbert Public Facilities MPC
p) Gilbert Water Resources MPC
q) Gilbert Self-Insured Trust Fund
r) Regional Meetings
s) Utility Board

Councilmember Presmyk reported there would be a Veteran’s Day celebration on November 9 at 11:30 on the north side of the Town Hall. Lunch will be provided by Nando’s Mexican Food and Joe’s Barbeque. There will also be soda and water donated by Cosco and Sam’s Club. A Commander from the Marine Air Station will be the keynote speaker at the event as well as at Gilbert High School’s Veteran’s Day assembly. Councilmember Presmyk encouraged all to attend.

POLICY ITEMS

None.

FUTURE MEETINGS

None.

COMMUNICATIONS

56. Report from the MAYOR on current events.

Mayor Berman reported there was to be a Halloween party and the Gilbert Days parade and rodeo.

57. Report from members of the COUNCIL on current events.

Councilmember Krueger reported the Barktoberfest held the previous weekend was a success with no problems reported.

Councilmember Morrison reported he would present a brief overview of his trip to Gilbert’s Sister City, _____, China at the next Council Meeting.

58. Report from the TOWN MANAGER on current events.

Manager Pettit reported there would be no Board and Commission interviews prior to the November 7 Council Meeting. The Council Retreat is scheduled for November 4 and the topic is Vision 2020. Manager Petit requested Council to reply as soon as possible to memos provided to them.

ADJOURN

A MOTION was made by Councilmember ____, seconded by Councilmember _____, to adjourn the meeting. Motion carried 7-0. Mayor Berman adjourned the meeting at ____ p.m.

ATTEST:

Steven M. Berman, Mayor
Catherine A. Templeton, CMC, Town Clerk

CERTIFICATION

I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the regular meeting of the Town Council of the Town of Gilbert held on the 24th day of October 2006. I further certify that the meeting was duly called and held and that a quorum was present.

Dated this 8th day of November 2006.

Catherine A. Templeton, CMC, Town Clerk