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HomeMy WebLinkAboutRES 95-24RESOLUTION NO.95-24 A RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION, ARIZONA, APPROVING REPORT BY CITY OF APACHE JUNCTION IN CONFORMANCE WITH THE 1995 ARIZONA SESSION LAWS,42ND LEGISLATURE,FIRST REGULAR SESSION, CHAPTER 166,SECTION 3. NOW,THEREFORE,BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION,ARIZONA,AS FOLLOWS: Section 1.That Chapter 166,Section 3 of the 1995 Arizona Session Laws,as adopted by the 42nd Legislature,First Regular Session, provides that every city and town with a population of more than 2,000 shall submit a report to the Office of the Governor of the State of Arizona,the Speaker of the House of Representatives,and the President of the Senate of the State of Arizona showing that the ordinances,rules and administrative procedures of the responding city or town comply with the United States Supreme Court cases of Dolan v.City of Tigard,512 U.S.(1994);No/Ian v.California Coastal Coninission,483 U.S.825 (1987);Lucas v.South Carolina Coastal Council,U.S.(1992);First English Evangelical Lutheran Church v:—County of —ros Angeles,482 U.S.304 (1987);and any Arizona or federal appellate court decisions that are binding on Arizona cities and towns. Section 2.The City of Apache Junction hereby approves and adopts as its report Exhibit "A"attached hereto and by this reference incorporated herein. Section 3.That by this resolution the City of Apache Junction hereby directs that the City Manager and the City Attorney shall cause said report to be filed with the Office of the Governor of the State of Arizona,the Speaker of the House of Representatives,and the President of the Senate of the State of Arizona not later than November 1,1995,together with a copy of this resolution. APPROVED AND ADOPTED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF APACHE JUNCTION,ARIZONA,THIS 3rd DAY OF OCTOBER,1995. SIGNED AND ATTESTED TO THIS 4th DAY OF OCTOBER,1995. DOUGLAS! COLEMAN Mayor RESOLUTION NO.95-24 PAGE 1 OF 2 ATTEST: KATHLEEN CONNELLY City Clerk RESOLUTION NO.95-24 PAGE 2 OF 2 REPORT BY CITY OF APACHE JUNCTION IN CONFORMANCE WITH THE 1995 ,ARIZONA SESSION LAWS, 42ND LEGISLATURE, FIRST REGULAR SESSION, CHAPTER 166, SECTION 3 COMES NOW the City of Apache Junction and hereby files with the Office of the Governor of the State of Arizona, the Speaker of the House of Representatives, and the President of the Senate of the State of Arizona, a report in conformance with the requirements of Chapter 166,Section 3 of the 42nd Legislature,first regular session, 1995.The provisions of this section provide that every city and town with a population of more than 2,000 persons shall submit a report to show that the ordinances, rules and administra- tive procedures of the responding city comply with the United States Supreme Court cases of Dolan v.City of Tigard,512 U.S. (1994);Nollan v.California Coastal Commission,483 U.S.825 (1987);Lucas v.South Carolina Coastal Council,U.S. (1992); First English Evangelical Lutheran Church v. County of Los Angeles,482 U.S. 304 (1987); and any Arizona or federal appellate court decisions which are binding on Arizona cities and towns. This provision demonstrates a concern with requiring the dedication or exaction of property rights as a condition of munici- pal approval related to the development or use of real property. This report is an analysis of the existing ordinances and adminis- trative procedures of the City of Apache Junction which may be interpreted by a layman as imposing dedications or exactions as a condition of the use or development of real property.In the analysis, whenever the City requires a dedication or an exaction, regardless of whether or not by administrative or legislative action,this report will show that there is an essential nexus between the dedication or exaction and a legitimate governmental interest;that the proposed dedication or exaction is roughly proportional to the proposed use, improvement or development; as well as the procedural safeguards contained within the ordinances or administrative procedures of the City of Apache Junction, which will ensure that such is the case. I.ZONING ORDINANCE In the process of implementation of certain sections of the Zoning Ordinance of the City of Apache Junction, it is possible that a property owner might be required to make a dedication or an exaction in exchange for municipal approval for the use, improvement or development of real property. A.Rezoning When a property owner is seeking a rezoning of real property,it is possible that the City of Apache Junction may require a dedication or exaction. Pursuant to Section 13.0109 of the Apache Junction Zoning Ordinance, the City of Apache Junction may require as a condition of rezoning dedication of right-of-ways of streets, alleys, public ways, drainage and public utilities as may reasonably be required by or related to the effect of the zoning.The ability of the City Council to make such a requirement is constricted by the provisions of A.R.S. §9-462.01(A)(7).The standard as embodied within A.R.S. §9-462.01(A)(7) mirrors the judicial tests for reviewing develop- ments exactions.See Dolan v. City-of Tigard,512 U.S.(1994); - Page 2 - Nollan v. California Costal Commission,483 U.S. 825 (1987); and Transamerica Title Insurance Co. v. City of Tucson,23 Ariz. App. 385, 533 P.2d 693 (1975). Rezonings are decisions made by City Council after notice and full public hearing.These are legislative decisions and do not include the exercise of discretion by an administrative official or agency in the final decision regarding the nature or extent of the dedication or exaction involved. B.Planned Development Zoning Article 19 of the Zoning Ordinance of the City of Apache Junction provides the regulations for a Planned Development Zoning District.The purpose of this Article is to achieve the objectives of the Zoning Ordinance by the promotion of planned developments which do not conform in all respects to the land -use patterns and regulations of conventional zoning. The procedure involved is essentially a three -step process consisting of (1) base zoning;(2) preliminary plan approval; and (3) final plan approval. With respect to the base zoning application, this is a rezoning process identical to the rezoning process for any other zoning district.There is a hearing before the Planning and Zoning Commission, as well as the City Council, prior to approval.It is an action by legislative enactment.In the preliminary plan step, the property owner provides a site -development plan with certain data as indicated in Section 19.0104(2) of the Zoning Ordinance. Upon presentation of this data, the City staff reviews the plan to - Page 3 - ensure it meets the requirements of the City and to be able to make appropriate recommendations to City Council.Staff does not make a final decision.The matter is then presented to City Council either as part of the basic rezoning of the property to Planned Development Zoning District, or as a separate item.Decisions regarding the preliminary plan are made by the City Council.The third step is that within one year of approval of the preliminary plan, the applicant shall file a final plan for the entire develop- ment for approval by City Council. With respect to dedications or exactions, the City may require as a condition of approval dedication of streets, public easements, provision for underground utilities, or provision for recreation facilities. The planned development process is one where the property owner usually achieves the ability to build and develop property in accordance with lesser standards than that which would normally be imposed in exchange for the dedications and other exactions as may be required for planned development approval. They are made as a result of a process of negotiation between the proper- ty owner and the City.Again,the process requires public hearing, comment and debate, as well as City Council action. Final decisions regarding dedications or exactions are not made by staff. Decisions regarding dedications or exactions are made by a legislative act of the City Council. C.Conditional Use Permit Another area wherein a dedication or exaction is possible within the Zoning Ordinance is when a property owner seeks a condi- - Page 4 - tional use permit.By seeking a conditional use permit, the owner is seeking permission to use property fora use which would normally be inappropriate with the surrounding neighborhood, unless certain restrictions or other conditions were imposed, thereby making the use compatible with surrounding property. The process through which a conditional use is obtained is provided in Article 6 of the Zoning Ordinance of the City of Apache Junction.By this process, the property owner files an application and gives specific details of the proposed use, a scaled site plan, and the exact specifications of the structure or area in which the use will be conducted.The application is considered by the Plan- ning and Zoning Commission at a public hearing.The approval of a request for a conditional use permit, with or without conditions, is made by a resolution of the Planning and Zoning Commission.A conditional use permit may be granted only upon a finding by the Commission that the use covered by the permit, the manner of its conduct, and any structure involved will not be detrimental to any person residing or working in the area, to adjacent property, to the neighborhood, or to the public welfare in general.The burden of proof for satisfying the aforementioned requirements rests upon the property owner. In arriving at the determination, Section 6.0101(3) of the Zoning Ordinance provides specific criteria the Commission must consider. Decisions regarding conditional use permits have a ratio- nal or reasonable nexus to a proper public purpose promoting the public safety, health, or welfare, and impose burdens which are - Page 5 - roughly proportional to impacts created by the specific use of the property involved. The approval, with or without conditions, or denial of a conditional use by the Planning and Zoning Commission may be ap- pealed by any affected person to the City Council.If there is an appeal, the City Council then holds a public hearing, at which time it may uphold, modify, or overrule the decision of the Planning and Zoning Commission. In the granting of the conditional use permit,it is possible to determine that roadways, public facilities, or services necessary to accommodate the proposed use are not adequate.There- fore, dedications or exactions may be required as a condition of the conditional use permit.The process utilized by the City provides for notice and public hearing before the Planning and Zoning Commis- sion and a right to appeal to City Council wherein the decision is made as a result, once again, of notice and full public hearing. All decisions regarding any possible dedication or exac- tion are made by the Planning and Zoning Commission with full right of appeal to the City Council.Therefore, no final decisions can be made by either an administrative agency or official. D.Variances Pursuant to Article 12 of the Zoning Ordinance of the City of Apache Junction, an application may be made by a property owner for a permissible variance from the regulations as provided in the Zoning Ordinance.A variance maybe authorized from the application of the provisions of the Zoning Ordinance in cases where strict - Page 6 - application of the provisions would result in serious impairment of the substantial property rights of the property owner, provided the long-term interests of the community are given full consideration. In this process, the applicant must present evidence to the Board of Adjustment that:(1) there are special circumstances or condi- tions applicable to the property to which reference is made in the application which do not prevail on other property in that zone; (2) that the strict application of the Zoning Ordinance would work an unnecessary hardship and the granting of the application is necessary for the preservation and enjoyment of substantial existing property rights; and (3) that the granting of the application shall not materially effect the health or safety of persons residing or working in the neighborhood, and will not be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood.In the granting of the variance, it is possible to require as a condition the dedication of land for public right- of-way or other public purposes.In requiring this dedication, there must be a rational nexus to the proposed use of the property for which a variance is sought, and the burden imposed upon the property is roughly proportional to the traffic or other impacts that use of the property will have on the neighborhood in question. Decisions regarding a variance, including any conditions that may be imposed, are decisions made by the Board of Adjustment of the City of Apache Junction.These are not decisions made by an administrative agency or official. - Page 7 - The Board of Adjustment of the municipality is established pursuant to the provisions of A.R.S. §9-462.06.Proceedings before the Board of Adjustment are regulated by said statute.A.R.S. §9- 462.06(k) provides that a person aggrieved by a decision of the Board may, at any time within thirty days after the Board has made its decision, file a complaint for special action in the Superior Court to review the decision.Therefore, the due process rights of the property owner are protected. II.SUBDIVISION REGULATIONS Pursuant to the authority it Title 9, Chapter 4, Article 6.2 of the Arizona Revised Statutes the City of Apache Junction has adopted ordinances establishing subdivision regulations.Pursuant to statutory authority, the City of Apache Junction, by its regula- tions, requires the dedication and improvement of public streets, sewer and water utilities,and provisions for drainage,flood control, and other public improvements within the proposed subdivi- sion. There are essentially two stages to a subdivision plat.The first stage is the preliminary plat, and the second stage is the final plat.In the preliminary plat phase, there is a pre -applica- tion conference between the subdivider and City staff. The preliminary plat stage of land subdivision includes de- tailed subdivision planning, submittal, review and approval of the preliminary plat.The preliminary plat submission procedures are set forth in the subdivision regulations.The staff review of a preliminary plat is made by the Planning Department, Director of - Page 8 - Public Works, City Engineer, the Police Chief, the Fire Chief of the Apache Junction Fire District, County Health Department, Superinten- dent of Apache Junction Unified School District, United States Postmaster in Apache Junction, Arizona, the County Engineer and Director of County Planning; and, where applicable, the Arizona Department of Transportation, as well as the appropriate utility companies.The Planning and Zoning Commission meets and holds a hearing on the preliminary plat and makes recommendations to City Council.Thereafter, the matter is scheduled before the City Council which may, by resolution, approve, conditionally approve, or deny the preliminary plat.In the approval of a preliminary plat, the street layout, including location, width, proposed names of public streets and conditions to adjoining platted tracts, and typical cross -sections of streets, alleys, drainage ways, retention basins, and tentative locations of water lines are set forth.The designation of all land to be dedicated or reserved for public use and the use indicated are also set forth on the plat.The location, width and proposed use of easements, as well as locations for fire hydrants, and proposed utilities such as sewage disposal and water supply are also set forth.In accordance with the requirements of the City Engineer, it is required that details and reports delineat- ing offsite and onsite drainage areas including, but not limited to, any onsite retention and routing of storm waters, be submitted. All flood -prone areas will be delineated and streets designed to accom- modate storm conditions. - Page 9 - A final plat includes the final design of the subdivision, engineering of public improvements, and submittal of the plat and plans by the subdivider for review and action by the City Council. Final approval of the plat is by an action of the City Council. Within the subdivision regulations, in Article IV there are set forth certain subdivision design principles and standards including street location, arrangement and design.Regulations on easement planning are also set forth.Article V sets forth street and utility improvement requirements.Article VII sets forth construc- tion and financial assurance requirements.The criteria utilized in the subdivision regulations is objective criteria meeting gener- ally accepted planning and engineering standards.As a result, there is an essential nexus between the dedication or exaction and a legitimate governmental interest, and the proposed dedication or exaction is proportional to the impact of the proposed use, improve- ment or development.By the process having both the preliminary plat and the final plat be subject to Council approval, at no point does the City Council give discretion to an administrative agency or official to make the final decision regarding the nature or extent of any dedication or exaction. III. ENGINEERING GUIDELINES On August 1, 1995, the City Council adopted Ordinance No. 932 which adopted new Engineering Guidelines setting forth the proce- dures for consultants and developers for preparing plats and engi- neering plans for subdivisions or commercial/industrial sites in the City of Apache Junction.The purpose of the guidelines was to set - Page 10 - forth objective criteria regarding the construction of public infrastructure including, but not limited to, the establishment and dedication of streets, right-of-ways, or utility easements.The standards include standards for streets, sanitary sewers, water systems, storm drainage, storm water retention, Salt River Project transmission line right-of-ways, floodplain management, landscaping and irrigation within City right-of-ways, retention basin or open space areas, installation of underground utilities, guidelines for reflective pavement markers, street light processes, and improvement assurance alternatives.These guidelines utilize and incorporate public health, safety, and welfare standards set forth in other city codes, utility company standards, and the latest state and County Health Department requirements, as well as the latest edition of the Uniform Standard Details and Specifications published by the Maricopa Association of Governments. Objective criteria is utilized throughout the Engineering Guidelines.By utilization of such criteria, the City has limited the nature and extent of the discre- tion given to administrative agencies and officials of the City of Apache Junction. One area which might be considered to be one where discretion concerning a dedication of property to a public purpose would most probably be the storm drainage policy as set forth in the Engineering Guidelines.Within the storm drainage policy of the City of Apache Junction, storm water which falls within the develop- ment from a ten-year storm of twenty-four hour duration must be retained within the boundaries of the development.The method of retention is left up to the developer and requires the approval of - Page 11 - the City Engineer.There is no requirement that a particular dedication of property be given.It is permissible for the develop- er to establish a retention area and dedicate it to the City for purposes of perpetual maintenance.If the property owner desires the City to maintain the retention area, then the area must meet design standards and requirements of the City.If there is no desire to have the City maintain the retention area, at all times it will remain with the property owner and no "dedication" will occur.Please note that there is a benefit to the property owner by the dedication.The benefit is that the City then maintains the area, and the property owner no longer has responsibility.Other- wise, it belongs to the property owner, who then has the duty to maintain the area so it effectively retains storm water.Because there is no required dedication or exaction, but rather such dedica- tion is one based upon mutual agreement for which the property owner derives a benefit, and which addresses a material public health and safety concern, it is felt this meets any legal test which may be involved. IV.PUBLIC WORKS Another set of ordinances requiring possible dedication or exaction of property is Chapter 13 of the Apache Junction City Code setting forth the Public Works ordinances of the City Code.Pursu- ant to Section 13-2-3(B) of the City Code, it is a condition prece- dent to the issuance of building permit for new construction within the City that the required street improvements be made to any street adjoining the particular parcel as set forth in the City of Apache - Page 12 - Junction Engineering Guidelines as described in Section III herein. In the construction of these improvements, it may be required for the owner to dedicate a portion of the property so the street or roadway may obtain its full width as set forth in the Engineering Guidelines.This ordinance is authorized by A.R.S. §9-243(B). The actual construction of street improvements occurs when the property is being developed.Development of the property generates the traffic and traffic flows both to and from the property and on adjoining streets.It is the actual development of property which causes the utilization of the streets in such a manner as to require the development.By delaying the requirement of development until the property is actually utilized, we believe this achieves the goal of an essential nexus between the dedication or exaction and a legitimate government purpose, and makes the dedication or exaction roughly proportional to the impact of the proposed use, improvement or development.As indicated earlier, objective engineering crite- ria is set forth in the Engineering Guidelines so the dedication or exaction is performed on a uniform basis utilizing objective crite- ria minimizing the exercise of discretion. V.OTHER ACTIONS BY CITY OF APACHE JUNCTION The City of Apache Junction does not have either the number or the detail of ordinances or regulations as may be maintained by larger municipalities within the State of Arizona.For example, the City of Apache Junction does not have, as yet, a development impact fee ordinance. - Page 13 - The City is in the process of developing an impact fee ordi- nance.Professional consultants will be used together with a thorough process to be sure the standards of Dolan v. Tigard are met.The City has received the legal advice that while the stan- dards of Dolan v.Tigard may not necessary apply to impact fee ordinances; nonetheless, if these standards are used, the propriety of the fees imposed will always be appropriate by any legal standard that could possibly ever be applied.See Home Builders Association of Central Arizona v. City of Scottsdale, 1 CA -CV 92-0210, Supple- mental Opinion of Court of Appeals, Division B, dated February 16, 1995. VI. CONCLUSION As can be seen from the foregoing discussion, the amount of regulation by the City of Apache Junction is at a very basic level. Because the City does not, by regulation, truly require administra- tive dedications or exactions, as that term appears in the provi- sions of A.R.S.§§9-500.12 and 9-500.13, it is believed the City is in compliance with the areas of law which appear to be of concern to the State of Arizona. At present time, the requirement of dedications or exactions are limited to the basic areas of rezoning,zoning approval for either variance or conditional use permit, actual development of property,or subdivision of land as provided by the statutory authority of the State of Arizona.Dolan v. Tigard can be inter- preted as upholding the right of a city or town to require a dedica- tion of property in exchange for governmental approval of use or - Page 14 - development as long as there is a reasonable nexus to a legitimate public purpose, and that the dedication is roughly proportional to the actual improvement or development of the real property involved. The City of Apache Junction believes this standard is met throughout all of its current ordinances and regulations. On August 1,1995,the City Council of the City of Apache Junction passed Resolution No. 95-20.A copy of this resolution is attached.By this resolution, the City Council of Apache Junction appointed Mr. Richard W. Garnett, attorney at law and former City Attorney for the City of Scottsdale, Arizona, as its Hearing Officer for purposes of appeals taken pursuant to this particular provision of state law.A.R.S. §9-500.12 does not limit the discretion of the governing body in the appointment of the hearing officer,and theoretically authorizes the appointment of a hearing officer who may be a staff member of the City of Apache Junction, its Board of Adjustment, or a staff member of another political subdivision of the State.However, to be sure that the hearing process acknowledg- es the due process rights of both the property owner and the munici- pality, the City has appointed a law -trained hearing officer who has no other connection with the City.Additionally, in adopting the form of notice to the property owner of appeal rights, to be sure the property owner is fully informed, the City has utilized language which expands upon the language of the sample notice as provided by the League of Arizona Cities and Towns in its memorandum dated July 7, 1995. - Page 15 - The City of Apache Junction has also, by its policy, gone to extra lengths above and beyond the requirements of House Bill 2229. Resolution No. 95-20 at Section 3 provides that the City staff is to develop a system whereby written receipt of the notice to proper- ty owner of appeal rights is evidenced by the written signature of property owners or the property owners'agents,and that each application which requests real property be put to a use, improve- ment or development shall require as part of the application the complete name and address of the real property owner so a copy of the notice can be mailed to the real property owner.In other words, not only is the applying party given a copy of the notice, but the City of Apache Junction will mail a copy of the notice to the property owner as well.In this way, we believe we are ensuring that an actual copy of the notice is being given to the property owner. By going above and beyond the requirements of A.R.S. §9-500.12, and by the submittal of this report, the City Council of the City of Apache Junction hereby acknowledges the importance of A.R.S. §9- 500.12 and wishes to ensure this law is implemented to its fullest extent. C:\WP51\DISC.7\REPORT5.AJ Oct.6 ,1995 -11:00 a.m. - Page 16 -