By Linda Bentley | january 6, 2016

Council nixes negotiating away right-of-way for Roadhouse patio

Lipsky said, ĎTrial periodí is the most absurd thing Iíve heard since Iíve been on council

CAVE CREEK – Monday night’s Call to the Public brought Bill Allen to the podium to encourage people to attend the upcoming Water Advisory Committee meeting at 6 p.m. on Wednesday, Jan. 13.

Traci Casale, president of Cave Creek Pro Rodeo thanked Katie Gheen, the 2015 Cave Creek Fiesta Days Rodeo Queen, and said she had done such a great job they’ve retained her for another year.

Casale also announced they have booked country music star Daryle Singletary for a Saturday night concert during this year’s Fiesta Days.

Larry Wendt

Larry Wendt updated council on the Buffalo Chip and said there was asbestos abatement that had to be dealt with professionally and is what prevented the start of tearing down the old building shell.

He said that was now complete and if the weather cooperated they would begin demolition this week.

Wendt thanked council and staff for all their assistance in helping him move ahead with rebuilding.

He said the Buffalo Chip has given out about $11,000 to employees, primarily single parents who haven’t found jobs yet and said Foothills Food Bank Executive Director Pam DiPietro had just made a deposit that day to the Buffalo Chip Employee Fund at Parkway Bank.

However, Wendt said, with 120 employees that only averages out to about $90 an employee.

Council voted unanimously to activate patent easements making sections of 53rd and 54th streets public rights-of-way for the Meritage Homes project.

Ernie Bunch

Councilman Ernie Bunch said he has a real problem with encumbering adjacent properties for a project of that size.

Planning Director Ian Cordwell said he sent out notices to affected property owners two weeks ago and heard from two.

Vice Mayor Steve LaMar, who moved to approve the item, said, “This is what they’re for.”

Councilman Dick Esser, who seconded the motion, said this would make egress and ingress legal for the applicant.

Town Attorney Bill Sims briefly explained the history and purpose of the federal government’s patent easements and said activation of these patent easements by cities and towns are fairly common.

Sims said Bunch’s concerns are something that could be addressed later on during the site plan review.

Council voted unanimously to approve the final site plan for Park West’s project consisting of two approximately 6,000 square-foot buildings on Carefree Highway between the previously approved McDonald’s and Starbucks.

Cordwell stated the project meets all of the town’s ordinances and exceeds parking requirements.

Bunch asked if the hitching post council requested when McDonald’s was approved was still in the plan.

Cordwell said it was.

Stewart Jean, representing Park West, said this was the last step of a long journey, which began about seven years ago, faced a referendum challenge and a shake-up at McDonald’s.
And, to answer questions about when McDonald’s might start building, Jean stated the company is having difficulties at the corporate level and various locations in the Valley have projects that are in the same state as this one.

However, Jean said they were paying their rent every month.

Jean also said he should be submitting plans for Starbucks by the end of the month.

He said the design of the two buildings, which he said are spec buildings, will be similar to the Kiwanis building in town.

Jean said there was still interest in the location, called it a “pretty simple little project” and noted it is “overparked” to accommodate a restaurant if there was such interest.

Town Manager Peter Jankowski introduced the next item, which was to provide him with direction as to whether or not council wanted to entertain entering into a development agreement with the Roadhouse to allow it to build a patio like the one it built on town property without permits and was required to remove.

Noel Hebets

Jankowski deferred to Attorney Noel Hebets, who was representing the Roadhouse.

Hebets said he wasn’t representing Jim O’Toole or the Roadhouse back when the patio was up, during what Hebets repeatedly referred to as the “trial period.”

He said they now want permission to put it back exactly the way it was during the “trial period.”

When the town received 15 feet for right-of-way, Hebets asked if it took “too big a bite.”

He said they can’t even paint their building without being in the right-of-way.

Hebets proposed two options, either entering into some kind of lease agreement or giving back some of the right of way.

“You could go either way,” said Hebets.

Sounding irritated, Esser said, “What happened here was not a ‘trial period.’”

Hebets said, “I think ‘trial period’ was a name I gave it.”

Hebets claimed southern exposure was the best location for the patio, whereas it would be sunnier during the winter months.

He went on to say, “I’ve been told there are no utilities …”

Jankowski stated there is a water line.

Jankowski also clarified the matter before council was whether or not council wanted to go along with this before involving staff and the town attorney to negotiate some sort of agreement to bring to council.

Councilwoman Susan Clancy said, “Given where we were three or four months ago, I don’t know why this is in front of us.”

Councilman Mark Lipsky echoed Clancy’s concern and said he didn’t know why it was before them either.

Lipsky asked what the town would do if another business decided to enter a “trial period” like this.

Jankowski responded, “There are no more ‘trial periods.’”

Steve LaMar

LaMar stated, “There was no ‘trial period,’” and explained the Roadhouse engaged in a criminal act by building on town property and building without a permit.

Sims said property owners have a right to ask.

Mayor Vincent Francia said council was the proper authority to either approve or deny such requests.

Lipsky indicated once council’s feeling were known on a matter, he expected the town manager to act based on those decisions.

Sims stated only council can approve a development agreement.

LaMar said, “I think we’re off the mark,” and stated the question was whether or not the town wants to give away right-of-way to businesses.

Esser asked if giving it away would affect the streetscape.

Jankowski said they were asking for nine to 14 feet north of the sidewalk, which would affect some of the landscaped area.

Sims advised council if it decided to abandon any part of the right-of-way it would be subject to all utilities.

Cordwell clarified the land in question was dedicated to the town and was not just an easement.

Hebets said he didn’t believe his clients violated what the streetscape was intended to be and was asking the town to either abandon or lease.

When Esser asked if he saw value in the property, Hebets responded, “Of course.”

Bunch asked if there was anywhere else in town where the right-of-way goes from 80 feet to 90 feet.

Cordwell said there were and provided a couple examples.

Associate Planner Bambi Muller stated the only way the town was able to get 15 feet of right-of-way was either during new construction or to ask and said the properties on either side of the Roadhouse have not been willing.

However, Thomas McGuire stated the Town Dump and Binkley’s might rebuild in the future and additional right-of-way might be possible, which he said would be very valuable.

During public comment, Don Sorchych said, “Seems to me we’ve gone through this before,” and balked at the town renewing an agreement that allowed the Roadhouse to keep its water tank monument 100 percent on town property.

Lipsky asked if there was enough room on the east side of the property if they wanted to build a similar patio.

Cordwell said there was.

Bunch moved to approve the request and said the complaint was they didn’t do it the right way and removed it.

He said this was the right approach and he supported negotiating an agreement to bring it back to council.

LaMar seconded the motion. However, he said he disagreed with Bunch and only seconded the motion to voice his opposition.'

LaMar stated this was not the first time a business built without a permit, although it was the first time a business built in the town’s right-of-way.

He stated it was not good policy for them to give public property away so a business can make more money at its bar.

LaMar said, “It’s not sane public policy for the town. We shouldn’t be giving away public right-of-way.”

Bunch said all they would be doing is having the town manager negotiate an agreement and stated, “I don’t like the word ‘give.’”

LaMar responded, “I do get the issue and have a right to object.”

Lipsky noted the last time the Roadhouse came forward with a proposal it was to lease the right-of-way for $25 month and asked if council really wanted to negotiate with people who offered $25 month.

Lipsky said they didn’t do what was right by never coming forward to apologize, adding, “‘Trial period’ is the most absurd thing I’ve heard since I’ve been on council.”

McGuire said he wasn’t particularly concerned about the past but was concerned with items in Hebets’ letter.

He said, “We’re talking about policy.”

Esser said he applauded Jankowski’s effort but said LaMar made an outstanding point and he couldn’t support it.

Clancy said she was appalled the item even came to them and thought Hebets’ argument that 150 people will want to be on the patio to get sun on their faces was ridiculous.

She said, “If you do it for one you have to do it for others.”

Francia stated council was exactly the body that should be hearing this and commented, “The well has been poisoned.”

While he was originally going to support negotiating an agreement, Francia said he was swayed by the vice mayor’s speech.

The motion failed by a vote of 6-1 with Bunch voting in favor.

Council voted unanimously to approve an expenditure of $86,180 for purchase and installation of new bleachers at the Rodeo Grounds.

According to Building Official Mike Baxley, the expenditure includes additional concrete work that will allow for future growth.

He said the new section of bleachers will provide seating for an additional 650 people, include handicap access and two stairways.

LaMar said the town’s goal was to make the Rodeo Grounds an attractive site and profit center. He stated it was a great asset to the town and is keeping the old west alive.

Lipsky said he was thrilled the bleachers were going in and was looking forward to the town finding more uses for the Rodeo Grounds.

Francia, addressing Casale and all the volunteers, said, “I cannot thank you enough.”

Francia recused himself for the next item which was a request to abandon an easement across his property originally intended to be part of a trail.

According to Muller, adjacent property owners have been unwilling to give up easements for a trail, the trail isn’t needed and the easement doesn’t connect to anything.

Bunch, who moved to approve the item, said he couldn’t support it because, like with the Roadhouse matter, the town shouldn’t be giving away easements it has acquired.

Sims advised council that it has complete authority to abandon easements without compensation if they are no longer needed.

With that, Bunch changed his mind and council voted unanimously to abandon the easement.

Council voted unanimously to approve an expenditure of $1,288.41 for sales tax not included in a previously authorized amount of $20,451 for repairs to the wastewater treatment plant.

Jankowski said the former town engineer (David Prinzhorn) had a habit of not including sales tax when obtaining authorization.

He said the parts were installed and working and he believed this is the last bill left in which Prinzhorn neglected to include sales tax.

Council voted unanimously to approve a resolution adopting a schedule of fees, terms and conditions for the use of town hydrant meters by the public.

Jankowski said the proposed application will give the town more control over how the meters are used and bring the fees more in line with other municipalities.

He said the town currently has six meters, which cost around $1,000 each, but the town was only receiving $50 per month for their use.