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REGULAR MEETING OF THE COMMON COUNCIL
OF THE CITY OF EL MIRAGE
EL MIRAGE ELEMENTARY
13500 N. EL MIRAGE RD.
6:00 P.M, THURSDAY, January 27, 2005
CALL TO ORDER Mayor called
the meeting to order at 6:00p.m. and led the public in the Pledge of Allegiance and
Moment of Silence.
ROLL CALL Present were: Mayor Fred Waterman, Vice Mayor Michele Kern, Councilmembers Xavier G. Bedolla, Roy Delgado, Rick Monzon,
Kathleen White, City Manager BJ Cornwall, Attorney Fredda Bisman, Police Chief Dick Yost, Fire Chief Roy Levenda,
Finance Director Diana Betancourt, City Clerk Edith
was Councilor Tensi Reed
A. Presentation by Mayor
and Council of Certificates of Appreciation to the 2004 Holiday
FROM REGULAR AGENDA
The police department helped 48 families for Christmas
this year. The City Toy Drive was a huge success, within a few weeks they put
together something that should have taken months. About 600 kids came and got
presents. The people that helped put in so much work in that short amount of
time. Mayor read each name and handed out certificates of
White commended the Hepps for all their
help. They took us out and allowed us to shop at Luke Air Force Base and got
us a discount. When we said we needed more volunteers, they went out and got
people. Councilor White hopes they will participate next year.
1. Consideration and action
regarding the addition to the Salary and Job Classification Plan of a Code
Inspector I which is a Range 51 with a salary range of $38,291 to $57,437.
2. Consideration and action
regarding approval of meeting minutes from August 26, 2004, September 23, 2004 and January 13, 2005.
3. Consideration and action regarding
approval to accept a grant from the Arizona Criminal Justice
Commission entitled Local Law Enforcement Block Grant for the amount of $7,140
plus a match of $793 making the total grant worth $7,933. Funding is to be
used to enhance our communications equipment by purchasing equipment.
4. Consideration and action
regarding ordinance O05-01-01 amending Article 3-4-8 Purchasing of the City
Code for the purpose of exempting professional services from the requirements
of the procurement process when in the City Manager’s discretion it is in the
City’s interest to do so and declaring an emergency.
5. Consideration and action
regarding resolution R05-01-02 amending that certain document known as “The
City of El Mirage Personnel Policies; Article 1- Statement of Principles,
Section 4- Personnel Policy Advisory Committee and Article 6- Dismissal,
Demotion, Suspension, Section 2- Disciplinary Action Procedure.
6. Consideration and action
authorizing staff to renew Group Health Insurance with CIGNA and MetLife.
7. Consideration and action
authorizing a Special Event Liquor License for the Pueblo
El Mirage Grand Opening and Charity Event to be held on February 3, 4 and 5,
8. Consideration and action
regarding resolution R05-01-06 amending chapter 13 Traffic; Motor Vehicles.
TO REGULAR AGENDA
9. Consideration and action
regarding ordinance O05-01-02 amending chapter 13 Traffic; Motor Vehicles.
White moved for items 8 and 9 to be moved to the Regular Agenda for
Kern made a motion to approve the consent agenda items 1 through 7; seconded by
VOTE: Yea: Bedolla, Delgado, Kern, Monzon, Waterman, White
MAYOR’S COMMENTS: Mayor would
like to implement a time for the council to make comments after the motion and
second but before the vote.
FROM CONSENT AGENDA
Yost spoke to both items 8 & 9 together. In the past six months the City
has seen an increase in the small motorized vehicles which do not fit the
requirement for statutory licensing as a motorcycle or car would. Several
cities are banding together to ban these vehicles and the reason why is they
are dangerous on the road. He has received numerous calls from citizens who
have almost hit these and they are noisy and make smoke. The main concern is
safety of the people. He does not know how many calls he has gotten. The
change of the ordinance is similar to what other cities have done. Yost met
with our Judge, Attorney and the City Clerk’s office to write
this. There was question does this mean we are going to site every kid we see,
no it’s not but there are certain people we get constant complaints on that
this will give us a little teeth to make them stop. It basically says it is
illegal to operate these on public property in the City and illegal to sell
them without giving the buyer notice of this ordinance. You can ride it on
private property as long as it doesn’t disturb the peace and quite. It also
holds parents accountable for their children. It is a public safety hazard. He
asks for it to be an emergency because of all the calls he gets from people
almost hitting these kids. Chief Yost would hate to think that if we didn’t do
something on an emergency basis, that someone would get hurt. That is why he
wrote the ordinance the way he did.
White says first of all this was put on an amended agenda which Council
received Tuesday night which hasn’t allowed enough public notice as far as she
is concerned given that we don’t have much entertainment for children to do.
She thinks the public should have been notified much earlier so they could have
come and make public comment. Glendale is currently looking at the same type of ordinance
but they have held public hearings and such. She believes if we did some
serious enforcement of the current code, it would take care of many of the
problems. She would like to know why they would not pull every kid over.
Also, her daughter has a mini golf cart, is that going to be banned as well?
Chief Yost said technically, by ordinance, it would be. But he believes the
state statues states that no one less than eight years old can be cited.
Second of all, he would direct an order to officers that this is not what we
are going after. We are trying to stop the people driving hazardously, like at
1a.m. with no head lights. Councilor White stated we could cite them for
that under the current code. Chief Yost explained that is the busiest time of
the night and quite often if someone calls and complains, very often we don’t
have the man power to respond. Vice Mayor Kern asked how changing the code would correct that
problem. Yost explained he planed to start a period of warnings and put notice
out in the water bills and such. Second thing was to stop people and give
warnings. Thirdly give direct policies to the officers as to which we should
and should not cite. Example is if a child is riding a little golf cart in the
street, he would expect the officer to knock on the door and say the child
shouldn’t be out there. But your child is riding a go-ped at 30 miles per hour
or down the middle of the street, this would give some teeth to cite both the
child and the parent. Councilor Delgado asked Fredda Bisman, City Attorney, if
one of these people gets hurt on these vehicles, what kind of responsibly is
the City in? Fredda explained that it would depend on the case but often
when there is an accident on the street, we see a claim but the specifics of
liability depend on the case. Councilor Delgado explained he himself almost
hit one of these kids and he reported it to the Chief. Vice Mayor Kern
thinks that our existing code seems to cover most of what we are talking about,
such as operating these on major roads. Chief said that is true. If she
understands this ordinance before them, it incorporates the new types that just
came out as well as banning everything and banning them from operating anywhere
that is “public”. Chief Yost stated it also adds a section to make parents
responsible. Vice Mayor Kern would like to solve the problem of people
driving these recklessly but she does not like the idea of setting something up
where our enforcement is arbitrary. If it is against the law to ride them then
it should be against the law for everyone to ride them. Example is a neighbor whose
child has a battery operated Barbie car and drives up and down the sidewalk;
she would now be in violation. Chief Yost says yes she would be but they are
aiming at the ones that go faster than that and drive recklessly. Vice Mayor says
that it appears that he is not trying to ban everything as this ordinance
states but that he is trying to ban the nuisance behavior and have enforcement
of items not currently covered and have the ability to drive by and ignore a
person using these properly. She wonders if there is another way to accomplish
this. Perhaps more from a behavior stand point than saying no one can do
this. Personally she doesn’t like them but she knows her neighbors do and
there is no place for them to go and there is not much else for our children to
do. We are saying there is an increase at Christmas time because people went
out and bought them less than a month ago and it is apparent that they want to
ride them and now we are going to say they can’t ride them anymore. As far as
the emergency, if we were only incorporating the new stuff, she would not have
a problem with in but the fact we are taking away what are currently their
rights and then we are going to take away another right of theirs which is the
30 day period in which to voice their opinion. Particularly since this item
did come up just two days ago and as she mentioned to Chief, she would have
felt more comfortable if he had bounced this off a committee or had some
meetings with citizens and some input. She feels she is being asked to make a
decision based solely on what she thinks and not on what the citizens want.
Chief Yost says he can’t mandate officers to write citations. This does not
ban them from riding on private property; it just bans them from the street.
It is not the intention to cite small children for riding Barbie type things.
It is the intention to improve safety. It is his job as Police Chief to bring
these things before Council. He felt a need for this. He asked for an
emergency because he personally investigated a child hit on one of these while
he was with Phoenix. Vice Mayor Kern said that if they are going to do a warning
period anyway couldn’t we go out and start giving them warnings. Chief Yost
explained that would not work because he wouldn’t have the authority to stop
them right now unless they are violation the current code. She said he could
stop them and say “Hey just want to let you know that 30 days from now, you
could be cited” you could do that and let citizens know. Chief Yost says that
if you approved the first reading perhaps but no, he couldn’t just stop
people. Councilor White thinks we should have given the public more notice so
they could come here to speak before we do any of that, even pass a temporary
one or anything else. She doesn’t feel comfortable with the fact that most
citizens don’t even have a clue they are voting on this tonight and she thinks
they should be able, given that they did go out and spend money 30 days ago for
this stuff, to come in and have their say so before Council votes on it. She
also read part of the current code regarding head lights and reflectors, under
which the mini motorcycles could be cited. Chief asked where she was reading
that from. She stated it is the original, current City code. 13-2-15 E 1, 2
& 5. Chief Yost said it is up to Council where to go from here. If
Council would like to postpone this and perhaps put something on channel 11 for
the meeting on the 24th, he will be happy to bring it back. Vice Mayor Kern
agrees that it is his position to bring this forward.
Turley 11521 W Paradise Dr. his neighborhood is inundated with these things.
He believes it is the parents fault for not supervising. It sounds like the
Indy 500 and they rip through the streets. It has gotten out of hand. Perhaps
we can find somewhere else for them to ride. He has seen so many near accidents
and soon there will be funerals.
Thomas 12045 W Flores Dr. he
doesn’t think it is a matter of what the equipment is; the kids are out there
having a great time. He thinks it is a matter of bad behavior, it isn’t a
problem if they obey the regular motor vehicle laws or are supervised by their
parents. We cite them for bad behavior. He has a problem with the noise.
Kern concurs with Mr. Turley , and she is torn because we have no place and we
are saying you will not use these things anymore period unless you happen to
have private property to ride them on. She thinks we need to look- is there
some place we can create or set aside to say you enjoy doing this but do it over
here. She asked Fredda if the right a way that we turned over to the home
owner’s associates is private property. Freda said it varies. Vice Mayor said so
the ones where it is private property, we wouldn’t be able to enforce this
anyway, just on the street.
Barvits he can’t believe that the
Council is even debating this. He says that if someone gets killed on one of
these, they are going to sue the driver who is then going to sue the City, it
doesn’t matter who is right or who is wrong. You guys are worried about their
rights when someone is going to be killed.
Bedolla asked if we allowed them to ride on vacant land we had, if we cleaned
it up, what our liability would be. Fredda stated that it depends on the circumstances.
Councilor Bedolla is referring to how other cities have skate parks. Fredda
explained that those cities do not escape liability but they check into their
insurance to make sure they have adequate coverage.
Kern wanted to comment that the reason Council is sitting here discussing this
is because the item was only posted two days ago and if she were to vote based
on her opinion, she would say get rid or them but her position is to represent
everyone’s views and ultimately coming up with what the City wants and she
wants to give other citizens the opportunity to present their views before she
makes a decision.
Mayor would like to see how the HOA’s feel about it.
Councilor White feels we should bring it back for public comment. Councilor
Monzon thinks we should put it on channel 11, and he tends to agree with the
Chief that our children are in danger.
White made a motion to table items 8 & 9 of the consent agenda to the February 24th, 2005 meeting so we can put it on channel 11 and possibly
have a public hearing.
Garret, Executive Assistant asked for clarification as to what they want on
Channel 11. (inaudible)
Mayor asked if we are going to give this to the advisory
committee or ask the Chief to provide information from the HOAs? Vice Mayor Kern
feels they received 2.5 different opinions tonight so she would like some
recommendations and bounce them off the citizens. Councilor Monzon thinks that
if we get multiple options, we are going to be changing a lot of laws. Vice Mayor Kern says
we are going to change the law regardless, it is just a matter or what are we
going to change it to. Councilor Delgado says that other Cities already did
the studies so we don’t need to reinvent the wheel, we should create an
ordinance just like Phoenix, Glendale and Peoria did, obviously people are
getting killed out there He feels that if we have certain streets that these
can be ridden on then the kids from other cities will come here. Vice Mayor Kern asked
if he knew if those cities offered the children or their citizens an
opportunity to do it someplace else. That is the issue- they are not going to
come here, they are going to go to the place their city offers them. We are
saying you can’t do it and too bad, we are sending our citizens to other
cities, if that is the rational. We are jumping on the band wagon of what
other cities are doing but we are going to stop short. Councilor Delgado said
we are not jumping on the band wagon and until such time as we have money to
put in a park then we will do it but we have to start someplace. You can’t
just have people killed out there. Vice Mayor Kern stated we are going to create a situation where
our children leave our city and go to someone else’s city. Councilor Delgado
says it will happen either way. Mayor Waterman asked Councilor Delgado if he opposed us
taking 30 days to look at this problem. Councilor Delgado wanted to vote on
this tonight with a 30 day notice to the public of what we are doing and if
there are other options, give them to them, whether they need to go to Peoria
or Glendale or wherever.
Fredda stated that we need to know whether the motion on the
table is seconded.
Kern seconded the motion to table the items until February 24th. Mayor Waterman
asked if anyone had anything else to say before he asked for a vote.
VOTE: Yea: Kern, Monzon, Waterman, White
Nay: Bedolla, Delgado
A. Presentation by Mayor
and Council of Certificates of Appreciation to the 2004 Holiday
TO IN FRONT OF CONSENT AGENDA
B. Consideration and action
regarding convening into public hearing of the Board of Adjustment to consider
requested variances from Zoning Ordinance.
Mayor Kern made a motion to convene into public hearing; seconded by
B1. Consideration and action regarding a variance
at 11817 W Thunderbird Rd. to allow a 15’ rear yard setback in B-2 zoning
adjacent to residential zoning where a 45’ setback is required.
Planner Mark Smith spoke on this item. This is for a new Star Market
including a gas station. The 15’ rear yard is standard for commercial
property. Letters were sent out to the neighbors and no one objects so they
are recommending approval. Mayor asked what type of fencing there will be back there
and Mark explained it will be a 6’ block wall. Mayor Waterman is concerned
about the traffic. Mark stated the traffic study indicated that it would not
cause more problems than already exists at that intersection. The planning and
zoning commission discussed it at length and they decided at this point they would
not require them to close it. The City could come back in the future and close
that. ADOT’s comment was the same. Vice Mayor Kern asked if we are requiring any sort of road
improvements. Mr. Smith said no they are not, because they are not generating
the traffic that is the problem. Mark stated this is off topic; this is a rear
yard variance before Council. The site plan has already been approved with the
stipulation that if it becomes a problem, the City can request it becomes
closed and the owner was agreeable. Mayor clarified that this will not be coming before them
again. Councilor Delgado asked whether the hours of operation were included
when they spoke to the neighbors. Mark referred to the owner. A
representative stated the hours were from 5am to midnight. Mayor asked Fredda if he could go off the variance at all because he had
a question. Fredda stated that use has already been approved so these
questions really do not go, the only issue before Council, as Mark Smith
stated, is the rear yard variance. The Council does not have authority at this
point to decide the use can’t go there. Mayor Waterman still wanted to ask about the structure. He
wanted to know whether the lights would be flush with the canopy above the
pumps. The representative stated they were non flush lights. Councilor
Delgado still wanted to know whether the neighbors know what the hours are. Mark Smith
stated the Planning and Zoning Commission did not get into the hours of
operation. Mayor asked who sets the hours; he thought they should be
decided by the City. Fredda stated that our City Zoning Code does not give the
Council authority over that.
Kern made a motion to approve the variance to modify the set back from 45 to
15’; seconded by Councilor White.
B2. Consideration and action regarding a
variance at 14010 N El Mirage Rd. to allow addition of two antennas at 70’ and
101’ on an existing 102’ non-conforming tower in Gentry Park.
Smith, Senior Planner stated that this
is a grandfathered tower. In this case they are co-owing; the height is why
this is before Council. Councilor Delgado asked whether this would interfere
with electrical equipment in the area. Mr. Stanbeck stated microwave antennas
are a point to point contact, they do not radiate out so it does not
White made a motion to approve; seconded by Vice Mayor Kern.
B3. Consideration and action regarding a
variance at 13706 N B St. to allow reduction of a lot from 60’ width and 5,532
sq. ft. to 55’ width and 5,071 sq. ft. in R-1 where 70’ width and 7,000 sq. ft.
Smith, Senior Planner explained this is
a request to lessen the size of an existing lot. They are not changing the
physical characteristics of either lot; they are transferring the driveway to
the lot next door. They recommend approval.
B4. Consideration and action regarding closing
the Board of Adjustment and reconvening into Regular Session.
Delgado made a motion to close the Board of Adjustment and reconvene into
regular session; seconded by Councilor White.
C. Consideration and action
regarding evaluation of the Work Study Meeting process.
REMOVED- DISSCUSSED AT WORK
D. Consideration and action regarding appointing Henry
“Hank” Pasinski to the Planning and Zoning Commission to fill the vacancy which
expires June 30, 2005.
White stated that it was very tough to make the decision, they had three
qualified applicants and she would like to thank each one.
Delgado made a motion to approve; seconded by Councilor Monzon.
Pasinski was introduced and Vice Mayor Kern welcomed and congratulated him.
E. Consideration and action
regarding awarding the construction contract for the El Mirage Rd.
Reconstruction (P04-01) Phase II (El Mirage Rd between Olive Ave and Northern
Ave) to J. Banicki Construction, Inc. The bid opening was held on January 24, 2005 with J. Banicki being the low bidder @ $658,071.87.
Cornwall, City Manager stated this is
for the second phase of the project. The bid award includes a 20%
contingency. The engineers estimate was $915,890.00 they are pleased it came
in under the estimate and they had 7 bids. Monday is the start date.
Councilor White wanted to make sure we are going with the 8” asphalt. BJ
stated yes. Councilor White asked if we discussed with Rinker about the
concrete under the asphalt. BJ said he spoke to the vice president Mr. Fantana,
we are meeting Monday morning to discuss a partnership with them. Councilor
Delgado stated that there are still waves on Olive. BJ asked Jerry Horacek to
make a note of that.
Rebecca Thomas, (mostly
inaudible) agrees with Councilor Delgado that there are still waves and why
wasn’t all of it bid on at one time to save money? Vice Mayor stated
she believed it was because of the length of time between the projects. BJ
stated it was because they could not have both roads closed at once. Councilor
White stated not all the money has been released so they will be fixing the
seams before they receive the rest of the money. BJ concurs. Rebecca asked
about the businesses especially the concrete company. BJ stated that is Rinker
and they are meeting on Monday.
Mayor Waterman asked what we are doing so we don’t have the
same traffic problems. BJ stated that that is why they are doing one side of
the street then the other. Councilor Delgado asked if signs were going to be
put up. BJ stated that there would be signs if this was approved as well as
put on channel 11.
Someone asked if the
discussion with Rinker was to include future damage to the entry point. BJ
stated that is part of it as well as sharing in the cost because we are doing
something in that section above what we are doing in the rest of it. Councilor
Delgado asked BJ to make sure to remind them that it is their water truck that
caused all the damage. BJ said that is part of it and they were very
receptive on the phone.
White made a motion to approve; seconded by Councilor Bedolla.
COUNCIL SUMMARY OF CURRENT
CITY MANAGER SUMMARY OF
Cornwall says we are tweaking the intersection with the two turn lanes weekly
and we will continue to monitor that even after the El Mirage improvement is
done, we know the traffic count will be higher. We have started the budget
process. He has had several meetings, letters and phone contacts with PERC and
he is optimistic that we will have a settlement soon and should be closer to
getting the treatment plant completed. They are meeting Monday. The
independent audit that citizen requested, has been completed and we are
awaiting final documentation and it should be brought before Council at the
next meeting for review and perhaps we can invite the public to the February 24th
CALL TO THE PUBLIC
Thomas- She is looking forward to the Heritage Park but is concerned about who
will be taking care of it considering we can not take care of our streets, the
Habitat for Humanity park looks awful, our entrance way- how embarrassing. You
are saying the money you have to match the first year, the second year you
don’t and so on. She is concerned about who is going to take care of this
Roberts- Pueblo El Mirage- Thanks Council for approving their grand opening and
the charity for Luke Air Force Base and would like to invite everyone to
attend, they have done extensive advertising. All the proceeds from the
charity walk as well as 25% of the food and liquor sales will be going to Luke
EXECUTIVE SESSION: NONE
White made a motion to adjourn (inaudible)
White made a motion to adjourn at 7:46p.m.; seconded by Councilor Bedolla.