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HomeMy WebLinkAbout2004-11-02 City Council Regular MinutesCITY COUNCIL REGULAR MEETING NOVEMBER 2,2004 The regular meeting of the City Council of the City of Apache Junction, Arizona,was held on November 2,2004,at the Apache Junction City Council Chambers pursuant to the notice required by law. CALL TO ORDER Mayor Coleman called the meeting to order at 7:00 p.m. INVOCATION Councilmember Insalaco gave the Invocation. PLEDGE OF ALLEGIANCE Councilmember Sippel led the Pledge of Allegiance. ROLL CALL Councilmembers Present:Mayor Coleman Vice Mayor Eck Councilmember Dietz Councilmember Insalaco Councilmember Milkey Councilmember Sippel Councilmember Waldron Staff Present:City Manager George Hoffman Assistant City Manager Bryant Powell City Clerk Kathleen Connelly City Attorney Joel Stern Public Safety Director Steve Campbell Parks and Recreation Director Jeff Bell Development Services Director Rudy Esquivias Others Present:Assistant Planner Noel .Griemsmann CDBG Administrative. Assistant Melinda Larson REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 1 OF 26 Grants Specialist Roger Hacker Business Advocate Roy Hunt Sergeant Gary Elkins Multi -Media Producer Matt McNulty Dispatcher Candi Nilles Administrative Assistant Suzanne Strong Police Officer Joe Shikany Community Resource Coordinator Janine Solley ACCEPTANCE OF CONSENT AGENDA )Vice Mayor Eck MOVED THAT THE CONSENT AGENDA BE ACCEPTED AS PRESENTED;AND THAT THE AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF APACHE JUNCTION AND TEAM PERFORMANCE,INC.DATED NOVEMBER 4,2003,TO CONTINUE THE PROFESSIONAL SERVICES AGREEMENT REGARDING ORGANIZATIONAL DEVELOPMENT,CONSULTING AND FACILITATING SERVICES IN AN AMOUNT NOT TO EXCEED $20,000 BE APPROVED,AND THAT AUTHORIZATION BE GIVEN FOR THE MAYOR TO SIGN THE AGREEMENT. Councilmember.Dietz SECONDED THE MOTION. VOTE:Unanimous. The motion carried. AWARDS,PRESENTATIONS AND COMMUNICATIONS Mayor Coleman received the ceremonial keys to the new Mobile Command Unit from Joy Johnson,the Community Revitalization Manager of the Arizona Department of Housing,and Lisa Baca,Community Revitalization Specialist. CDBG Administrative Assistant Melinda Larson also acknowledged Quality Vans, which built and customized the unit.She announced that the unit would be outside and available to tour.Community Revitalization Manager Joy Johnson congratulated the city on another completed project and stated there has always been a good working relationship between the city and the Department of Housing due to Roger Hacker and Melinda Larson.Public Safety Director Steve Campbell introduced AJ-5,the new gun safety robot purchased with funds from a Department of Justice grant. REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 2 OF 26 Parks and Recreation Director Jeff Bell stated they would have to reschedule the award ceremony planned for mparks ,and recreation commissioner as he was: unable to attend this evening. Parks and Recreation Director Jeff Bell stated Superstition Shadows Park has been receiving recognition: statewide.I t received the Governor's Excellence: in Rural Development Award in the Community Development Parks and Recreation Infrastructure category at the Governor's RUral Development Conference in •Lake Havasu on October 8,2004.It was presented by Senator Rios and Representative Chase in front of hundreds of elected:and appointed officials from around the state_In early September the Arizona Parks and Recreation Association selected the park for ,its Outstanding Facility Award in our population category.Awards presented by,the state association are viewed by recreation officials as the state's most prestigious: jt was presented at the association annual award dinner_He then played a video on the park. CALL TO THE PUBLIC Mr.Melvin Mulholland,516 N.Pinyon Drive Lot 68,: Apache Junction,addressed the council regarding the Pueblo Del Sol subdivision:.It was subdivided in 1962 with most lots being .8,500 sq.Th They are frequently zoned general rural which stipulates, 1.25 acres minimum, per lot.It would take over 6'lots to make 1:25 acres.Irraddition the current zoning ,would allow horses, pigs,chickens etc.He:thinks it was probably originally ,zoned CR,and somewhere along the way it was misread as general rural.He wanted to build a two car garage on his property.He got, a demolition permit 11 months (go and demolished :a one bedroom house ,and an old mobile home.Hethen.got a permit to install a 32:'X •.68 double wide manufactured home.He did not have room to built La garage:a neighbor suggested he purchase 12'to 15'of his - north property line that he was not using.The two of them have the two: largest lots in the:subdivisiOn.The end, of Cody AVenue was abandoned in, 1985 or 1986:25',of right-of-vaylNas reverted to the property owners:His lot was zoned at 103'X 95',or 9,780 sq.ft,His neighbor's lot became 12,160 sq.ft.when he got the abandoned right -of -ay.HeiDurchasedA.5:of the south portion ofhis,neighbor's lot;makingtiS lot I1,21.0sq,ft.:He went to the building department to ge-La permit to build a garage and was,. told by: zoning he could not build one,stating,his neighbor was close to, compliance for ,1.25acres when he'receiVed,the rightof-way,•.,bUt when he sold the 15'to him it made him less in •conformance and that cannot be &he.He and his neighbor would like to rezone their,two lots,although the entire REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 3 OF 26 subdivision should be rezoned correctly.It could become a problem forrthe city in the future.He requested some guidance to alleviate the problem. Mayor Coleman requested staff tolook:intoAhe ,matter. Vice -Mayor Eck requested :it be made: into: an agenda item to be brought back with pros and cons CITY MANAGER'S REPORT City Manager George ,Hoffman stated Governor Napolitano has called upon the state to.develop a "cUlture of conservation"with regard •to water conservation while they still have time to.find out what works best and where the resources should go.He commented that Jeff ,and Nitk have dramatically reduced the overseeding the city does for the parks facilities this year: They will only be overseeding the high use areas.I t -is the: most water conservation that they have done so far.He stated that he convened the local directors last week of the Apache Junction Water District and 'Arizona Water toAalk:about the.water conservation they have and the possibility of making the policies uniform,bringing back a request to the city council for adoption of plan for the community as a whole.They are agreeable to that PUBLIC HEARINGS APPLICATION FOR A TEMPORARY EXTENSION OF PREMISES"ON THE' LIQUOR' LICENSE OFARIZONA JOE'S RESTAURANT '&10UNGE FOR 'NOVEMBER 2004-- )City Clerk Kathleen Connelly. briefed the council on: the item.She stated this is an annual request.The packet contains recommendations from the policeAepartmentand ,:pianning: department stating they :have:no objections.The:application is in order andl the .applicanthasteen notified to attend this evening :in'the: event of any questions: Mayor Coleman requested the applitant'address the council.. Mr.Joe Vincent,601 N.Merrill, MesaHthe!trustee of the -trust that owns the 'property, .addressedthecouncil. REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 4 OF 26 He stated this is their fourth annual event and the last three years have gone well.He is hoping for another successful run this Saturday. Mayor Coleman opened the public hearing on the item.There being no one wishing to speak,he closed the public hearing and reopened the item to council discussion.There being no discussion,he called for a motion. Councilmember Insalaco MOVED THAT THE APPLICATION FOR A TEMPORARY EXTENSION OF PREMISES ON THE LIQUOR LICENSE OF ARIZONA JOE'S RESTAURANT & LOUNGE FOR NOVEMBER 6,2004,BE RECOMMENDED FOR APPROVAL TO THE ARIZONA DEPARTMENT OF LIQUOR LICENSES AND CONTROL. Councilmember Sippel SECONDED THE MOTION. VOTE:Unanimous. The motion carried. RESOLUTION NO.04-26,CASE CUP -03-90, REVIEW OF CONDITIONAL USE PERMIT FOR THE • DESERT GOLF CENTER DRIVING RANGE LOCATED AT 1061 OLD WEST HIGHWAY )Assistant Planner Noel Griemsmann briefed the council on the item.He stated this item was continued from the October 5,2004.The issues are essentially the same. The golf center has been operating under the conditional use permit since 1990.He stated there was initial confusion over the owner of the property. The property is owned by P & F Enterprises;Paul Connolly is the actually the property owner.The applicant listed on the staff report is the proprietor of the business.He had notified Mr.Connolly by mail prior to the first hearing and met with him prior to that meeting.He is aware of this case. He was also invited to be here this evening.The item was continued for further consideration by council;staff has nothing new to add.The same questions are still there. Mayor Coleman asked if the insurance has been determined to be sufficient. REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 5 OF 26 City Attorney Joel Stern stated he has looked at the insurance and he believes i t is sufficient to meet the intent of the first conditional use permit.There is adequate coverage for any golf ball hitting any property within 500 feet of the property line. There is $1,000,000 coverage for each occurrence if it is bodily injury,with $2,000,000 aggregate.It meets the original conditional use permit.He added Mr.Griemsmann might want to outline the issues quickly for those that might not have been at the last public hearing. feet from the property line. that is correct. from where the ball is struck. Mayor Coleman asked if that is 500 City Attorney Joel Stern stated Mayor Coleman commented i t is not City Attorney Joel Stern stated i t is not from the tee.That is his understanding from the insurance carrier. An email addressed to Mr.Hunt states 500 feet from the property line. Assistant Planner Noel Griemsmann stated there are 3 issues they are looking at.The first issue was insurance which has been addressed.The second issue was the temporary nature of the enterprise.The initial conditional use permit was passed about 14 years ago and there is a question as to whether the temporary nature of the use has changed.The third aspect was determining if this use has become a demonstrated hazard with the growth of the community and more traffic on Old West Highway. Councilmember Waldron asked what the umbrella policy covers that they have to provide to the city. City Attorney Joel Stern stated the policy talks about $500 for any damage or any property damage within 500 feet of the property line.The $1,000,000 coverage was for bodily injury of any incident where a person gets hurt.There is a total of $2,000,000 aggregate, meaning a total of $2,000,000,but any single incident would be $1,000,000. REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 6 OF 26 Vice Mayor Eck commented if there is $1,000 in damage,the insurance would cover $500 and the occupant would be responsible for the other half. City Attorney Joel Stern stated anything above $500 would not be covered from his understanding. Mayor Coleman requested the business owner address the council. Mr.Lloyd K.Ray,Jr.,the lessee of the business property known as the Desert Golf Center,addressed the council.He stated the owners are P & F Companies,or Paul Connolly.He stated he had requested a postponement at the October 5 meeting until May 2005 because he was overwhelmed with the legal issues in the matter.The council disregarded his request knowing he was not prepared for their attack on his person and came after him with weapons of words while he was unarmed. He commented he felt their scorn as they made wild accusations about him and his business.He felt their rudeness towards him as they looked down on him. He stated he is prepared tonight,and he would need more than 5 minutes to speak. give him 10 minutes. needed 15 minutes. give him 15 minutes. Mayor Coleman stated they would Mr.Lloyd K.Ray,Jr.stated he Mayor Coleman stated they would Mr.Lloyd K.Ray,Jr.stated there are at least 12 issues to be addressed tonight,all concerning Conditional Use Permit 03-90.All of them are in the matter of which and in the manner of which he has been pulled into their spider web.On or about October 27, 2004,he submitted a formal complaint against the city development services department and employees Rudy Esquivias,Noel Griemsmann,Mayor Douglas Coleman,the city council members,and George Hoffman pursuant to Arizona Revised Statutes 12-821.01,Sections A,B,and C.During the October 5 meeting his assistant,Marilyn Ryusaki,served 7 formal complaints dated September 26,2004,upon the mayor and each council member;they contained REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 7 OF 26 facts sufficient to permit them to understand the basis upon which liability was claimed.Item No.: 2,Title 18 of the: United Stated Constitution,Section, 242,Depravation of Riqhts Under Color,of Law,makes i t a.crime for any person acting under color of law to willfully deprive or cause to be deprived from any.person those rights,privileges,: or immunities secured or protected by the Constitution of the United States..He asked how they believe they have legal control of him:.he does not believe they legally or lawfully do. He asked if they believe they have legal control over P &.F Properties,or Paul Connolly.He asked where Paul Connolly or P & F Properties were at the October 5 meeting.They,did.not attend the meeting,and they are not here tonight.He commented these hearings are for the benefit of Mr.and Mrs. Surra for their quest to put him out of business.On October 7,2004,he called the city clerk's office to inquire-how a person would file a complaint against a -business if they believed a business was in violation of a condition or stipulation of a conditional use permit.He -was told the party would need to write a legible complaint to whom i t concerned,and submit i t with a completed form obtained from the city clerk's office to the city clerk:The city clerk would then submit the complaint to -the proper city_ official for their review:He looked through the file and could not find -a complaint filed on this conditional use permit.He found letters to a business from the Surras;Any reasonable person would believe they are a privileged couple as no written complaint- has been filed,with rules made by the city just for them.He asked how they got their complaint reviewed.He asked if they are better -than any other person in the cityor: if they have special privileges.He believes they do according to.the ,records.Item -No. 3 concerns on or about: May 16:2004,the witch hunt was on by Rudy and Noel. They tried to make a case that the driving range was in violation of the conditional use permit.The records show that the driving range has never received any type of letter that they were in material noncompliance within the meaning of the conditional use permit.The records also show that there is no letter stating that the driving range is in non -material compliance within the meaning of the conditional use permit.Based on the provisions contained within the conditional use permit,i t could only be reviewed i f there was:a violation.I t has real strict provisions so people like Rudy .and Noel could not tamper with it.He commented the city council believes they can invade the private lives of people -without the bounds of law,just like the police who.shoot and ask questions later,costing :the people of the city a lot of money and embarrassment.He believes.thecity. Council is sayingisue me.Item No.4 was in regards to fraud..He gave a definition of fraud.He stated 'a party who has: lost something due to.fraud:is entitled to file a lawsuit for damages -against the party ,acting fraudulently:The:damage& may REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 8 OF 26 include punitive damages as a punishment or due to the malicious nature of - the fraud;Often there are several people involved in a scheme to commit. fraud.Each and: all may be liable for the total damaged inherent in the fraud.Item No.5'concernaLforgery,a crime of creating a false document, altering a document,or writing a false signature for the illegal benefit :of the person making the forgery.I t includes improperly filling in a blank document like:an application for a new conditional use permit.Item No.6 concerned .a definition of a forger.There were no violations of this conditional ,use permit,yet Rudy Esquivias,Noel Griemsmann and Kathleenf Connelly conspired to commit -fraud upon him with forged documents when publishing a notice of a change of ownership of the land site in question, and ,a change of use of the conditional use permit as i t relates to the applicant,defined in the city ordinance for application of a new conditional use permit.He asked where the application was that was filled out by him. I t is not in the records.He:showed them an application that should be filled out for a new conditional use permit and commented on the information included ,on how to fill out the form,make application,and the process.On September -17,2004,a publication appeared in the Mesa Tribune showing that, he was the new applicant of the conditional .use permit.It was sent to and through' Kathleen Connelly.He asked who authorized her to publish a conditional use permit that had never been filled out.He commented they : tried to steal the land from P & F Properties.Item No.8 concerns September 17,2004,wherein the mayor and city council sent public hearing notices to all landowners around the subject site for a change of use and new ownership as i t relates to the applicant for application of a new conditional use permit,committing fraud and forgery as there is no new, application on file. He asked who paid for the publication is there is no application on file He asked if this would be misuse of public funds,and commented any reasonable man would think so.Item No.9 concerns the September 20,2004 work session. They must:have:had the proper paperwork in front of them so that on October 5. they could have public hearing on October 5 on this application,which is nonexistent,for a new conditional use permit and new resolution submitted by the new applicant.He asked what the work session was for if there was no application.Item No.10 concerns that at no time the subject site was sold by Pi& F PropertiesAo Lloyd K.Ray,Jr.or anyone else.He stated Rudy, Noel,Kathleen;the mayor and city council tried to make the public believe the story by sending all of this to the newspaper and to them by U.S.mail, It was done by fraudulent and forged means and is a direct violation of Title 42,United States Constitution,Sectioh242.under color of law.At the public hearing:of October 5,2004,at 7:00 p.m.was used to publicly scorn and place fraud and forgery upon him.He commented the people involved knew REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 9 OF 26 willingly and were with the intent to harm him by committing fraud and forgery against him and the people they were elected by.Item No.11 concerns the secret side of the government.He talked about a news program he recently watched.One person commented there needs to be more openness and communication with the public.The other said that people believe that the government is a terrorist organization because they do everything behind bullet proof glass and locked doors.He stated he never saw that until he came to the city administration building.Resolution No.04-26 is in the purest form of what the city administration is all about:terrorism against businesses.Treating people like animals and hiding behind bullet proof glass and locked doors.He asked if they were afraid of the public.He commented there were 5 people sitting in the front row and the October 5 meeting and none of them heard the mayor say anything about escorting him out of the building.On October 11 he received numerous phone calls at his business asking when the mayor said that.They were quoting the AJ News.He commented the mayor must have whispered i t because no one ever heard it.He did not,and he was as close to them as he is now.The transcription of October 5 is not what really happened.He was here:he can only assume this is another form of terrorism by the person who transcribed the hearing.They put only what the city wants to have written and nothing else.They might think Resolution No.04-26 is a lollipop,but they would be sick to their stomachs if they were in his shoes every time they read it.All of them should have their hands cut off for writing such filth against a business owner.On October 5 the mayor and the city council degraded a 75 -year -old Mexican American,a 52 -year -old Japanese American,and a 55 -year -old part Native American,which he is,to just their cause in committing racial bias towards them.The transcript of the October 5 hearing does not reflect the facial expressions or the tone of their voices when all of them were disgusted that someone would stand up with a right to be free from government intervention and to the private lives of small businesses and his livelihood to make an honest wage and live the American dream of owning his own business.Resolution No.04-26 was written for one purpose;to champion the Surras'cause to put him out of business and to protect P &F Properties. Leave Conditional Use Permit 03-90 in full force and effect.P &F Properties have never been here to state their objection to this hearing or any other hearing which shows they are hoping the city will sign the new resolution.This would put him out of business,and it will not affect them or anyone else who might lease the driving range at a later date. Mayor Coleman stated his 15 minutes was up.He asked him to summarize. REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 10 OF 26 Mr.Lloyd K.Ray,Jr.stated all of them hold the Surras on a pedestal and worship the ground they walk on,which is reflected in the transcript of October 5,2004.They were given over 20 minutes to speak without even asking to have more than 5 minutes as prescribed by their rules.He and two others had to beg like a dog to have more than 5 minutes to speak.When they did speak,all three of them showed by clear and convincing proof that the Surras did not tell the truth when they stated that their vehicle was damaged by a golf ball from his driving range.The Surras refused to state at the meeting that the personal injury occurred at that time.The council did not ask her any questions on personal injury.Following that October 5 hearing,on October 11 on the front page of a local newspaper i t stated there was personal injury so that everyone could see it.He asked if this is a Mr.and Mrs.Hyde or Mr.and Mrs.Jekyl story. A reasonable person would have sufficient doubts as to the incident occurring.He thinks the city council holds the Surras in high esteem i f they would risk their political lives to stage illegal hearings.He commented all of them should step down and let people with integrity take their places.I t is appalling and inhumane that they should commit such a tragedy on the life of Lloyd K.Ray.I t is deplorable for them to treat people like dogs because they stand up for their rights.He requested they stop what they are doing and shelve this case to stop any further embarrassment to themselves and for the good of the people of the city.His assistant would be following him;she is Japanese American.He commented i f they treat her with disrespect as they did on October 5,2004,God would take care of them. Ms.Marilyn Ryusaki,the assistant manager of the Desert Golf Center,addressed the council.She requested the council look at the notice of public hearing dated September 16,2004, prepared by City Clerk Kathleen Connelly.She asked,them to look at the notice that was -sent out to the property owners within 300 feet of the Desert Golf Center property line.The notices are what any reasonable man would consider false .documents,created by the city clerk,the mayor and city council.I t is evidence_of outright forgery.She asked if she could have 10 minutes. Mayor Coleman stated she could have 10 minutes. M's:Marilyn Ryusaki stated the definition of forgery is the crime -of creating a false document,altering a REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 11 OF 26 document or writing a false signature for the illegal benefit of the person making the forgery.The staff of the development services department purported or pretended to act as applicant for Lloyd K.Ray,Jr.in the performance of their official duties,paving the way for the city clerk, mayor and city council to commit the crime of forgery to create false documents contained in the file for Conditional Use Permit 03-90.I t seems Lloyd K.Ray,Jr.is hacking his way through a technical jungle in obvious futility.His remedies have been exhausted because of the legal issues created by the council/manager form of government,by which the city,mayor, council and city manager implemented Resolution No.04-26 to become the law of the city by forging documents that take governmental ownership or control over the person of Lloyd K.Ray,Jr.with regard to the business known as Desert Golf Center.I t is a crime for one or more persons acting under color of law to willfully deprive or conspire to deprive another person of any right protected by the Constitution or laws of the United States.This means that the person doing the act is using power given to him by a governmental agency;local,state,or federal.This includes not only acts done by local, state,or federal officials within the bounds of their lawful authority,but also acts done beyond the bounds of that authority.An official would violate the color of law by fabricating evidence against an individual,that person's rights of due process or unreasonable seizure.In the case of deprivation of property,the official would violate the color—of law by unlawfully obtaining or maintaining the property of another.The official would have overstepped or misapplied his authority.In order for an unlawful act of any official to be done under color of law,the unlawful act must be done while such official is purporting or pretending to act in performance of his or her official duties.This definition of the Constitution includes mayors and council members.Enforcement of those provisions does not require any racial,religious,or other discriminatory motive to be in existence.On April 16,2004,Mrs.Surra forwarded 2 letters written by her to the Desert Golf Center to the city attorney and zoning administrator.She referred to her letters as information relative to the claim.In effect,she was stating she was only stating what she had been told and she believed it.She did not have personal knowledge to protect herself from claims of outright falsehood or perjury.The development services department staff memorandum dated September 21,2004,stated that on or about April 16,2004,the city received a complaint about a citizen and their property being struck by an errant golf ball presumably driven from the Desert Golf Center property.Presumption,by definition of law,permits a court to determine a fact is true until such time that there is a preponderantly greater weight of evidence which disproves or outweighs the presumption.A presumption can be rebutted by REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 12 OF 26 factual evidence.One can present facts to persuade a :judge that the presumption is not true.This is not a court of law L None of them can act as a -judge to presume or assume that the allegations of the Surras are true. The letter forwarded to the city on April 15:is hearsay,or secondhand evidence.The witness was not telling what:she knows personally but what her husband, had said to her,or it was scuttlebutt or gossip.I t is based upon unconfirmed information.The definition of hearsay,by law,is secondhand evidence in which the witness is not telling what is known personally but what others have stated,or scuttlebutt or gossip_The letters of Anne Surra are publicized in the public records of the,development services department Conditional Use Permit 03-90 file.The letters contain statements which are falsehoods or libelous.Her husband remained silent and refused to speak in front of the council during the October 5,2004,meeting regarding the claims made:on his behalf.Anne Surra committed the crime of forgery by creating false documents by a dishonest means to deprive Lloyd K.Ray,Jr.of his money by hiding evidence and misleading the'development services department staff:the mayor,the council, .city manager,city ,attorney,and the public. The woman involved city officials in a scheme to:commit fraud, to take unjust advantage'overithe person of Lloyd K.Ray,Jr.and the business of which he . merely leases some P &F property from Paul Connolly.Lloyd K.Ray,Jr.'s reputation has been damaged or ruined by their acts of publishing untrue statements about him in the files of the conditional use permit and allowing Mrs.Surra to make untrue statements at the October 5:2004,meeting and to involve him in -the decision making of Resolution No.04-26 and the review of the conditional use permit for the Desert Golf Center.I t is vital to consider two factors in his dealings with the city.The rules and regulations in this:case are special and are :not foUnd in any city,state or federal: statute'Lloyd K.Ray,Jr.has filed two complaints with the mayor and city council and two complaints with the city clerk.She believes he.has exhausted his administrative remedies with those agencies and system.There exists such exception in this case,such as emergency;or obvious futility to exhaust his remedies because she does not believe they will acknowledge the legal problems she is challenging with.The legal problems should be considered,not Resolution No.04-26,as the _resolution cannot become A law of the city.She believes i t is a false document created by staff for their benefit and the benefit of Anne Surra.It only applies to .one individual, Lloyd K.Ray,Jr.I t is based solely on belief, presumption and hearsay. She requested the resolution and the memorandum,attached be .denied and forever,tabled,and:that no further public hearings be held on this matter. REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 13 OF 26 Mayor Coleman openedAhe:public hearing on the item.There being no one wishing to speak,he Closed the , public hearing:andopened the item to council discussion. .Vice Mayor Eckcommented'he felt this issue could have been resolved with a minimal amount -of effort -fromAlr. Ray had he shown any effort to doAhat.-He believes:the allegations against staff for treatiniThim wrong are totally false.Our.staffhaS:tried to work With him L Hecommented he ,had come in here:optiMistie and wanting to work with -Mr.Ray.However,there is nothing to work with.He complainsand , leaves.He does not see:how ,the,rcan .do anything.He thought It was 8 privilegeAhatAheydealt with Mr:Raysince the conditional use permit is not even in his name..He does not know of a solution;orhoW they can resolve an issue if both:parties do not make some effort.toAo so.i He does not see that effortj Councilmember Ihsal8co commented he“ feels that Mr Ray does notWantto have tocomplywith.the.same things that :other businesS'people have to:comply with,.himself -includecL.His attitude is Uncalled fdr.They:haveitried to ,work4ith him,but there :is no working agreement Vice Mayor.Eckcorkented.one of the major things that irritates him is that they have a responsibility when a liabiTitycomes to the, Council to ,:take some:type of action.to prevent i t from, happeningagain.Whether the ,conditional i.le.permithas been, act -lye -a year... or 14 years,: once they, are aware of the liability;they have to try:to . iresolve it in some manner.He believes there are some things they coUld.have worked .on bUt:Mr.Ray does not appeartoi be milling ,to do that: •Cbuncilmember MiTkey.commented:the business advocate: has attempted to work with :Mr'.Ray since the last meeting.. Jhey:havecantacted .Paul Connelly.He thinks that from a staff perspective theyhave,done -everything -they can to communicate :with Mr.Ray regarding the: -conditional us permit and the intention of•the.council regarding an update .to the conditional use permit and that conditional use permits are temporary in nature.This is a 14-year4old conditional use permit that they need: to. address.,whichAheY:are .doing.this:evening. Mayor Coleman commented they have several options for how'they.candeal with this.He added Mr.Ray at one . REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 14 OF 26 point accused the council of doing business behind closed doors and out of public view and then he criticized them for advertising public hearings in the newspaper on the issue.He finds that contradictory.The options allow them to deny the conditional use permit,do nothing,approve a new conditional use permit with new recommendations,or allow the existing conditional use permit to continue with a possible end date.He asked i f they are all legal options. City Attorney Joel Stern stated they are.The last one mentioned would require the council to authorize staff to draft a resolution that sets a termination date of the Conditional Use Permit 3-90.They must also authorize the mayor to sign the resolution; that way i t does not have to come back to the city council.It would be presented to the mayor for his signature as soon as it was drafted. Councilmember Sippel asked if they would have to set the date now. City Attorney Joel .Stern stated_ that is correct.They need to set the date that i t should terminate. Mayor Coleman asked if the conditional use permit as i t exists right now is Resolution No.90-51. Development Services Director Rudy Esquivias stated the original resolution was 90-54. Mayor Coleman stated the copy in his packet was not signed by Mayor Bluntschly. Councilmember Dietz stated his was signed.I t is on the very last page before the motion. Mayor Coleman asked if they are basically in compliance with the current resolution. City Attorney Joel Stern stated they are in compliance with the insurance;the dark sky ordinance he will leave to Rudy.The other items should also be addressed by Rudy. REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 15 OF 26 Councilmember Dietz asked if the insurance has always been in compliance or was i t recently taken care of. Development Services Director Rudy Esquivias stated Roy has had the most recent conversations with Mr.Ray. the insurance is from May 1,2004. just from this year. that was all he targeted at this time. Business Advocate Roy Hunt stated Councilmember Dietz commented i t is Business Advocate Roy Hunt stated Mayor Coleman commented the current resolution states i t is understood that the conditional use permit may be revoked by the city council upon the finding that there has been material noncompliance with the conditions prescribed in conjunction with the granting of the conditional use permit.He believes they are looking at item number two,which is if the endeavor ever becomes a demonstrated hazard. Development Services Director Rudy Esquivias stated that is correct.He is basically the city zoning administrator;a citizen came to him with a concern regarding some property damage.The issue was brought before the council to determine if there has been a demonstrated hazard,whether the insurance coverage is adequate,and whether it was time to revisit the issue of the permit.He believes i t is his responsibility to bring to council an issue with a business that could be a problem to the city. Vice Mayor Eck agreed.He asked i f the city had done anything to address the fact that we have a liability here since this occurred. Development Services Director Rudy Esquivias stated the property is as it was approved back in 1986. •Vice Mayor Eck -asked if anything had been done since the city was made aware of this current situation;had there been any positive change. REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 16 OF 26 Development Services Director Rudy Esquivias stated not to his knowledge. Vice Mayor Eck commented he has a problem extending this when they are aware there is a liability and they get nothing. Business Advocate Roy Hunt stated Mr.Ray was helpful in facilitating and getting him connected with the underwriter of his insurance so that they could clarify the misconception that claims were only good for a distance 500'from the tee box.This is an example of an effort made. Vice Mayor Eck commented that is the only effort.He asked if there was a second effort on anything.He had never seen a case like this since he has been on the council. City Manager George Hoffman stated Roy's designated job is to advocate for the business.He is trying really hard to do so right now. Mayor Coleman asked if in April the business decided they wanted to continue operating would they be able to look at implementing another conditional use permit with additional requirements caused by the growth in the city and increased traffic on Old West Highway i f they were to come up with an end date of May 1,2005. City Attorney Joel Stern stated he does not believe the rules address that but under general due process law he thinks they would have the privilege to come to the council to ask for a reconsideration of the deadline. Vice Mayor Eck asked if it would be Mr.Ray or the landowner. City Attorney Joel Stern stated i t would most likely be the holder of the conditional use permit which is the landowner,P & F Properties,with Mr.Connolly as the agent.Mr.Ray does have some interest as he is the business owner. REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 17 OF 26 Mayor Coleman commented he was asking because there has only been theione.complaint:It'might have occurred: numerous.times;but .there had only been one:instance -in 14 years where a complaint:was:filed. City Attorney Joel Stern stated he is only aware of the one. ASsistant Planner Noel Griemsmanr stated there is only the .onecto the best of their knowledge.I t is the Only one in the file. Vice Mayor Eck:commented they heard of vcomplaint ,by an electecLofficial driving his vehicle and almost :having a- golf ball hit his vehicle.: Councilmember Sippel commented he. would like to ,mirror what Vice Mayor Eck said in saying- that nothing:hasteen, done since the:complaint -hadcome:out.He -would think that if a business had .receiVed ,-a complaint.,they would do what they could to rectify the situation, so that it would hot happen. again,. Business Advocate Roy, .Hunt commented he wondered What that would be:possibly putting up netting. CounciTmember Dietz commented that would be a great first step. Vice Mayor Eck commented they could. also grade the outskirts so that a ball could not come and bounce. Councilmember:Sippel commented these :arethings they talked about earlier.. Mayor Coleman commented' if he was in Mr..Ray's plate he is not'sure-hemould,want tpinvest.:in netting on a_ piece of property that. he was leasing that he was not !sure he would have a conditional use permit on. Business Advocate Roy Hunt agreed. REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 18 OF 26 .Vice Mayor Eck commented he might have gotten more of commitment from the council if he had done some negotiating.• Moor Coleman commented his .preference Would be that the council .allow him to operate through the season. like to have an end date of May 1,2005. Vice Mayor Eck agreed. Mayor Coleman commented, he would Councilmember Sippel disagreed. Vice Mayor Eck commented he thinks that Js being polite,but it would be hard to shut him down tomorrow. Councilmember SippeT disagreed. BusinesS Advocate Roy Hunt stated Mr.Ray was concerned that the city .was first notified of the complaint in April but nothing was done until the very beginning of the .golf Season.They have already invested In advertising and other efforts tOtramp ,up for their .season.:I t -would have been easier for'him ,to deal with it Hn April or May. They could have then made other business plans.,- Vice Mayor Eck commented he did not hear any discussion about this i n Apr i l . Assistant Planner Noel Griemsmann, stated the initial contact was the April 16 letter that, was forwarded to the city from Mr's.Surra A response went out to him on May 17 to clarify some of the issues that cameup after a review of the file:He responded to that on May 25:and the next letter went out -to him on August 2 regarding additional information.They met withtim.on August 10 and :he ,responded back after the meeting. Development Services Director Rudy Esduivias stated there had been ongoing correspondence,: the issues were being investigated,and the conditional use permit was being studied carefully to define every avenue: REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 19 OF 26 Councilmember Sippel commented there was a lot of staff time. Vice Mayor Eck commented he could see putting an expiration date on it,but he thinks they are going above and beyond doing that. Councilmember Sippel commented they may want to talk about this some more to make sure something happens tonight. He is not agreeable to letting the conditional use permit continue after all the time and effort staff had put into it.They have done everything they could to assist this business and the way that they are handling i t is not professional at all.They have done nothing to try to rectify the situation when they knew about i t in August to solve the problem.He does not foresee them doing anything about in the future even after i t is extended.He would hate to have him come back a month before i t is canceled and ask for an extension.They would have to go through this all over again if they do not give it to him then.He wondered if they were just delaying the inevitable. Vice Mayor Eck commented they can still go out and continue to do routine observation if this is extended.He asked if they could expire the conditional use permit at any given time i f there were another incident. City Attorney Joel Stern stated that is correct.They have the right to revoke it. Vice Mayor Eck commented they would take the risk of whether i t is a minor incident or something more severe. City Attorney Joel Stern stated i f the insurance falls through or any of the other conditions which determine i t to be a demonstrated hazard. City Manager George Hoffman asked if the council is bound by a 14 year previous city council if this council decides to change its risk tolerance either for itself as an organization or for the community or can it change the conditions that i t desires for the community and the organization. REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 20 OF 26 City Attorney Joel Stern stated they can increase i t or decrease it to whatever they feel based on the evidence. City Manager George Hoffman commented they are not bound by a council decision 14 years ago. City Attorney Joel Stern they are not.If they only change the expiration date,then they are bound by these terms until something else happens that raises some caution or concern. Councilmember Sippel commented or when a car does get hit this time,the council knew about and now they have litigation.As Mr.Ray put it,we waste more taxpayer dollars. Councilmember Dietz asked what the process would be to deny the conditional use permit using option one. City Attorney Joel Stern stated they would be revoking Resolution No.90-51. Councilmember Sippel asked what the process would be to do that,and what would happen tomorrow. City Attorney Joel Stern stated he would be out of business basically.If he continued business,there would be code compliance issues,legal issues and a zoning violation.The best way to continue it to a date certain would be to have staff create a resolution that adds that a term number 5 under the old resolution. Vice Mayor Eck commented he is willing to extend it to May 1,2005,although i t is not what he would prefer. That would give him the season and i t is obvious that is when he makes the majority of his business.He believes they are going above and beyond doing that.Come May 1,some definite changes would have to be made for the business to continue. Councilmember Waldron commented his first inclination is to deny the conditional use permit,but that is a retaliatory'response based on factless and baseless arguments that he has made.He does not want to stoop to that level.He is a business owner in REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 21 OF 26 town.He thinks the extension is good,but i t should be to April 30.As a matter of record,he does not want to see this again.Once this extension goes through,that is it as far as he is concerned.His presentation was horrible and inexcusable. Councilmember Insalaco agreed. Mayor Coleman closed the discussion and called for a motion. Vice Mayor Eck MOVED THAT RESOLUTION NO.04-26,A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION,ARIZONA,MODIFYING A CONDITIONAL USE PERMIT,CASE CUP -3- 90,FOR A GOLF DRIVING RANGE ON A COMMERCIAL PROPERTY ZONED C-4,THAT THE CUP WILL EXPIRE ON MAY 1,2005. City Attorney Joel Stern commented they want Resolution 04-26 to be modified by creating a new termination date of Resolution No.90-51. Vice Mayor Eck stated that is his intention.He wanted to modify it to where i t expires on May 1,2005. City Attorney Joel Stern asked i f the other terms in the resolution were to be included.These include landscaping issues and. other things.He asked if they wanted to add those; they are in the .current draft resolution. Vice Mayor Eck commented he did not.He just wants the termination date. City Clerk Kathleen Connelly asked if he wished number two to remain,which statesthat if this should ever become a demonstrated hazard the zoning administrator shall withdraw the conditional use permit. Vice Mayor Eck commented that would remain.They would then have the ability if another item comes up tomorrow. REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 22 OF 26 City Attorney Joel Stern commented they,are ,the same terms except they are Adding a number: five that creates a new termination -date. Vice Mayor Eck stated that is correct. City Attorney Joel Stern stated thatdatejs May. 1„2005. Assistant Planner.Nbel Griemsmann stated staff will delete :all.of the items in ResolutiOn NO,04-26 and have i t read number one,being the termination;date subject -to the conditions inthe previous resolution; City Attorney Joel Stern:stated all other terms ofthe ,original resolution Stay:the,sameL MayorColeman stated it would be exactly the same as,the ,ol'd one with numberlfiVe being the termination date. City .Attorney Joel ,Sterrrstated that i's correct. COuncilmember Dietz.SECONDEU THE MOTION., VOTE 4-3.(Councilmembers,Sippel,ililkey,and Insalaco voted in -opposition.) The motion 'carried. , OLD BUSINESS None; ,NEW BUSINESS . INTERGOVERNMENTAL AGREEMENT FOR PROVISION OF SERVICES BY THE PINAL COUNTY RECORDER AND ELECTIONS DEPARTMENT REGULAR MEETINGI OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 23 OF 26 )City Clerk Kathleen Connelly briefed the council on the, item.Every two years when the :city:prepares:to" d6 the elections,we enter into an intergovernmental agreement withAhe Pinal 'County Recorder's Office and the Elections Department to provide services'; Following council action,it will be forwarded to the county board of supervisors for their .corresponding action. Mayor Coleman opened theriteuto council discussion:There being no discussion.:he callecLfor a:motion. CouncilmeMber•Dietz'MOVED THAT THE INTERGOVERNMENTAL AGREEMENT BETWEEN PINAL COUNTY AND THE CITY OF APACHE JUNCTIOWFOR PROVISION OF SERVICES BY THE PINALCOUNTY RECORDER AND ELECTIONS DEPARTMENT BE APPROVED',AND THAT.AUTHORIZATION BEGIVEN FOR THE MAYOR TaSIGN, THE AGREEMENT:- Councilmember• Waldron, SECONDED THE MOTION. H •.•.. VOTE Unanimous; The motion carried. COUNCIL DIRECTION' TO STAFF ON ANY OF THE ABOVE LISTED:AGENDA ITEMS None. COUNCIL DIRECTION TO STAFF ON OTHERPROPOSED LEGISLATION OR ACTIONS None: SELECTION OF MEETING DATES,TIMES.LOCATIONS, AND PURPOSES • CounciTmember Dietz MOVED THAT AN EXECUTIVESESSION:AT6:00 P.M.AND WORK SESSIONIAT 700 P.M.BE HELD ON: MONDAY,NOVEMBER 15.:2004; IN 'THECITY CONFERENCE ROOM AND CITYCOUNCIL CHAMBERS,RESPECTIVELY;AND •THAT EXECUTIVESESSION A1-6:00 P.M :BE ON TUESDAY,NOVEMBER 16,2004,IN THE CITY CONFERENCEROOM. REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 24 OF 26 Vice Mayor Eck SECONDED THE MOTION. VOTE:Unanimous. The motion carried. INFORMATION AND REPORTS Vice Mayor Eck commented he went to a couple of neighborhood meetings and believes that staff is doing a great job of communicating with the citizens. I t is a great program with good information and good communication. Mayor Coleman stated Councilmember Waldron and he participated Saturday in the GAIN event,Getting Arizona Involved in Neighborhoods.The police chief, Suzanne Strong,the parks and recreation department.,Mr.McGruff,Rudy,Roy, and Joel were also there.Mother Goose was there from the library.They visited 12 different block parties from noon to 7 p.m.It was really good. It was very informative.He got to hear a lot of people talk about different subjects.He appreciated city staff taking a Saturday to participate.It , will hopefully help us with our efforts as far as block watches and crime prevention. Councilmember Waldron stated they liked the fire truck more than the Jeep Liberty. ADJOURNMENT )Mayor Coleman adjourned the meeting at 8:30 p.m. Consent Agenda Items are as follows: 1.Acceptance of Agenda. 2.Acceptance of Minutes of Regular Meeting of October 19,2004. 3.Consideration of Amendment to Professional Services Agreement with Team Performance,Inc.dated November 4,2003,to continue professional services agreement regarding organizational development,consulting and facilitating services in an amount not to exceed $20,000. REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 25 OF 26 ACCEPTED THIS 16TH DAY OF NOVEMBER ,2004,BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION,ARIZONA. SIGNED AND ATTESTED TO THIS 16TH DAY OF NOVEMBER 2004. ATTEST: KATHLEEN CONNELLY City Clerk DOUGLAS ZOLEMAN Mayor CITY COUNCIL MINUTES CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the regular meeting of the City Council of the City of Apache Junction,Arizona,held on the 2nd day of November,2004.I further certify that the meeting was duly called and held and that a quorum was present. Dated this 9th day of November,2004. KATHLEEN CONNELLY City Clerk REGULAR MEETING OF THE CITY COUNCIL NOVEMBER 2,2004 PAGE 26 OF 26