Council put off by one-sided development agreement
By Linda Bentley | April 7, 2010
Attorney Paul Gilbert (l) consults with his clients John and Dr. Robert Bullington (r) after council made it clear their proposed development agreement was steeped in distrust and “one-sided.”
Photo by Linda Bentley
Unpleasantness of town attorney selection process mended relationship
CAVE CREEK – Town council discussed a development agreement proposed by Attorney Paul Gilbert on behalf of the Bullington family for their 13-acre property on the southeast corner of Cave Creek Road and Carefree Highway.
The item was presented to council for discussion only in order to provide direction to the Bullingtons.
Town Manager Usama Abujbarah explained the town was asking the Bullingtons to provide a right of way (ROW) at 56th Street and Carefree Highway. Abujbarah said the agreement is proposing a transfer of the ROW to the town in exchange for future development.
“There are two issues,” said Abujbarah. First, the town doesn’t have a site plan application yet from the Bullingtons and second, they have not yet submitted a rezoning request from Commercial Core to General Commercial.
He said there was some confusion that approval of the development agreement will approve the site plan and rezoning without going through the statutory procedures to approve them.
Abujbarah said there were also timing issues, whereas the dedication of the ROW was not to take place until council approved the site plan and rezoning. “The problem is, we don’t have an application for either.”
While there are additional ROWs for right hand turns from Cave Creek Road onto Carefree Highway that will eventually be required from the Bullingtons, Abujbarah said what he proposed to Gilbert is a ROW for only the 1,400 square feet needed for a right turn lane from Carefree Highway onto 56th Street now needed for Walmart and for which the town would be willing to compensate the Bullingtons.
After reviewing the proposed development agreement, Councilman Ralph Mozilo asked, “Would it not be cleaner to just purchase the 1,400 square feet?” He said it seemed like an “exercise in futility” to go through the development agreement.”
Abujbarah agreed it would.
Responding to Councilman Steve LaMar’s question as to whether all the property subject to the agreement was to be used for public ROW, Abujbarah said, “Yes.”
Councilman Adam Trenk asked if the town had done any arithmetic as to the cost of all the improvements.
Abujbarah said it had not and that some of the costs would be shared.
Trenk then asked, “Why would we want to enter into this agreement?”
Abujbarah responded, “That’s a good question.”
LaMar said he’s lived in town for 26 years and couldn’t recall a single time “when we’ve abdicated our responsibility over a site plan.”
Town Attorney Marlene Pontrelli said the agreement appeared to contain everything on Gilbert’s wish list of which she said 90 percent would not be doable.
Pontrelli suggested separating out the 1,400 square feet for immediate need since the site plan and rezoning all must go through different processes.
Gilbert said there appeared to be a huge disconnect and proceeded to explain how the development agreement would work.
“You’re asking for things in advance of when you would ordinarily do so,” said Gilbert which he said would normally be done at the time his clients came to the town with development applications.
Gilbert also said the Bullingtons would be submitting a site plan with all the exhibits on Thursday, April 8.
“We’re not asking you to waive the cost of improvements,” said Gilbert. “We’re asking for one significant concession – accelerate the processing of these plans.”
Responding to Mozilo’s question as to whether it wouldn’t be cleaner to just sell the town the property, Gilbert said, “Yes, but it wouldn’t be in our best interest.”
LaMar asked, “Doesn’t this fit the description of ROW?”
Gilbert responded, “You need the dedications and you need it earlier than it would normally be extracted.”
LaMar said, “I got the sense the short (revised) agreement is about as one-sided as the long one,” and asked, “Do you think this is even handed?”
Gilbert replied, “Most development agreements are not.”
Mozilo likened the development agreement to Obama’s health care bill, stating, “What he says is not what the agreement says.”
LaMar went through the agreement and called out every section he had a problem with, which was the bulk of the agreement.
Summarizing, LaMar said, “Generally, the agreement is one-sided. It abdicates control. We’d be abdicating responsibility for Cave Creek Road and Carefree Highway to the Bullingtons for the next 25 years.”
Council agreed with LaMar’s assessment.
Mozilo said, “I can understand five years, but to obligate this town for 25 years …”
Gilbert agreed 25 years was quite lengthy but was what his clients wanted.
“I want to be business friendly,” said Mozilo, “But this is a one-sided agreement.”
Trenk stated the agreement requires the town to put improvements in within three years but then gives the developer 22 years to build, leaving the cost of maintenance, repairs and upgrades to the town.
Planning Director Ian Caldwell explained the timeline of getting items before council. He said if the Bullingtons submitted everything required on Thursday, the earliest it could be before council is June.
Abujbarah stated the reason there was a timing issue is the town needs to have ownership of the 1,400 square-foot parcel before design of the improvements can begin.
Trenk asked, if the town had an accelerated need, “Why such a lengthy document? Why not just do something simpler and act in good faith?”
Pontrelli said many of the same concerns from the first draft were included in the second draft.
Not expecting the discussion to take so much time, Mayor Vincent Francia asked LaMar and Mozilo to meet with Gilbert, who requested that a member of staff also attend.
In the interim, council unanimously approved the second reading of a resolution authorizing acquisition of the 1,400 square-foot parcel through the use of eminent domain if necessary, which Pontrelli stated would be carried out in parallel to negotiations with the Bullingtons.
Trenk asked if eminent domain is an adversarial process.
Pontrelli said it is. She also confirmed the town could proceed with plans once the eminent domain process was underway and didn’t have to wait until it was final.
Francia said, “Eminent domain is more than adversarial. They’re hostile but sometimes necessary.”
Trenk said he was convinced the eminent domain proceeding will cost less than the development agreement.
Moving on, council unanimously recommended approval for a #9 Liquor Store liquor license for Walmart.
A flat fee contract with Mariscal Weeks McIntyre & Friedlander, PA for town attorney services was also met with unanimous approval.
Abujbarah said the differences the town had with Mariscal Weeks, as aired during the council meeting that narrowly approved continuing with the firm, have since been resolved and they now have a very good working relationship.
Korina Riggin provided the town with an update on the inaugural Cave Creek Trail Run held on April 3 to raise money for the purchase of open space.
She said they cut off registration at 252 participants, although she now believes they could have easily accommodated about 100 more.
Riggin said the event was a huge success, they had plenty of volunteers and although they don’t have all the final numbers yet, it raised somewhere around $7,000.