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HomeMy WebLinkAbout10/10/2017 Study Session Meeting Minutes ................... ......... MAN A f It ESTABLISHED 1977 MAR-ANA TOWN COUNCIL STUDY SESSION 11555 W. Civic Center Drive, Marana, Arizona 85653 Council Chambers, October 10, 2017, at or after 6:00 PM Ed I-Ionea, Mayor Jon Post, Vice Mayor David Bowen, Council Member Patti Comerford, Council Member Herb Kai, Council Member Carol McGorray, Council Member Roxanne Ziegler, Council Member CALL TO ORDER AND ROLL CALL. Mayor Honea called the meeting to order at 6.-02 p.m. Town Clerk Bronson called roll. Vice Mayor Post was excused. Council Member Kai arrived at 6:10 p.m. There was a quorum present. PLEDGE OF ALLEGIANCE/INVOCATION/MOMENT OF SILENCE. Led by Mayor Honea. APPROVAL OF AGENDA. Motion to a rove by Council Member McGorray, second by Council Member Ziegler. Passed 5-0. CALL TO THE PUBLIC. There were no speaker cards presented. DISCUSSION/DIRECTION/POSSIBLE ACTION DI Relating to Procurement; consideration, discussion, and direction regarding proposed comprehensive rewrite of Chapter 3-4 (Purchasing) of the Marana Town Code (Erik Montague and Jane Fairall). Presented by tJane Fairall. This project has been. going on for over one year. The code has not been updated for many years. We looked at codes from other municipalities and the state and referenced the American Bar Association (ABA) Model Procurement Code which has been adopted by the State in whole or in part and many other municipalities. It is a very comprehensive document. The ABA Procurement Code had a set of ethical standards which is October 101 2017 Study Session Minutes 1 not in our current code. The ABA also provides statutory principles and policy for managing and controlling procurement as well as administrative and judicial remedies for the resolution of controversies. Ms. Fairall then highlighted some of the significant changes. For a purchase over $50K and not in the approved budget or which is in the budget but exceeds the budgeted amount, including change orders, those all come before Council for approval. The proposed rewrite would outline what the town manager's role is for any purchase up to $50K or authorized by the budget. Another area that we wanted to include is with ethical standards. Because we want a very strong policy, we have incorporated prohibitions on attempting to influencing any town employee to violate the procurement code, preparing specifies or plans to receive any direct pecuniary benefit from the use of plans or specifications, offering or giving a gratuity to a town employee, or a town employee accepting a gratuity in connection with any procurement decision, and disclosing or using confidential information for anticipated pecuniary benefit. We included a proposed section that includes small and disadvantaged 'businesses. This came from the ABA Code and is intended to be flexible, but there are no requirements. Regarding bid protests, debarment and suspension,, at times the state code is a little more bureaucratic than it needs to be for the town; however, the provision will include timelines and administrative procedures. Small purchase amounts are another area we are proposing some significant amendments by increasing all the limits, For perspective, the chart in the Council materials gives perspective. Those are the significant changes. Council Member Bowen asked about the formal bid process for small purchase amounts if the amount is under $50K and whether that falls under the town manager's purview to approve them. Ms. Fairall stated that if it is greater than $25K we would do a formal bid process, but if it is under $50K, the town manager or the designee which could be the finance director, would approve that without Council approval, Motion to approve the changes by Council Comerford, second by Council Member Bowen. Passed unanimously 5-0. D2 Relating to Development and Traffic and Highways; discussion of comprehensive 1 facilities in the Marana land development revisions to regulations of wireless communication facilitie code and in the Town Code's right-of-way regulations (Frank Cassidy & Jane Fairall). Presented by Frank Cassidy. Until early this year the legal department was working on revisions to our telecommunication ordinance to try to take into account some federal changes and rules, and before we brought those changes to Council, the state adopted some significant changes in the wireless communications regulations, so we put our revisions on hold until we found what was coming out of the legislation. What did come out were some aggressive and robust policies and provisions. We've tried to incorporate all of that into the telecom code which is also in the Land Development Code into the streets and highways provisions of the town code. We wanted feedback from Council on some of the key questions or decision points. The federal and state regulations have taken away quite a bit of discretionary authority from local governments. At the -federal level, they have adopted a rule that certain modifications that fall within certain parameters are totally administrative; there's no possibility of any involvement in 1 f-way (ROW) and they are adding those. At the state level, 0 if a wireless provider is in the right-of a wireless facility of 6 cubic feet or less onto an existing pole, that is also completely out of our hands and is an administrative process. There is still documentation that needs to be done. The October 10,2017 Study Session Minutes 2 League coordinated a working group led by Kelly Schwab and the City of Chandler's legal team which did an excellent job. Mr. Cassidy put all of Chandler's documents into Council's materials so you can see the same kinds of things that we are going to require people to show us in order to take advantage of these administrative provisions. Chandler also has forms and policies for intake for the more discretionary applications. Mr. Cassidy continued with the discretionary applications. Right now, a new communications tower in Marana requires a conditional use permit (CUP), We are proposing that a CUP in or out of the ROW for any new tower will still require a CUP, but right now those CUPS always come to the Council. The way the town's Land Development Code is written, the normal process for other types of CUP uses is that the Planning Commission makes the final decision., and if someone appeals then it comes to the Council. There is an exception in the current code that says for any type of wireless communications, if you're putting up a tower, that CUP gets a recommendation from the Commission and a final decision always from the Council. We are proposing in the new ordinance to use the normal process for telecom; that you go ahead and let the Planning Commission make the decision, and only on appeal does it come to the Council. That is the first thing we would like to get feedback on. Mr. Cassidy noted that in this process, unless he gets comment or feedback, he will assume that you are okay with what is being proposed. Mayor Honea noted that the Planning Commission deals with these things more than the Council, so it makes sense, and if a Council Member has a problem, he or she can appeal, Mr. Cassidy responded that the Land Development Code allows any member of the Council to appeal or hear any concern if it is brought to your attention. The other thing is we still have it written that any new tower requires a CUP, but we want to make sure before we move forward, I'm sure that le in the industry are going to be pushing people peo-o Council to create an administrative process even for new towers under certain circumstances, so staff was curious as to where there was any appetite by the Council to do that. Sometimes communities inside the industrial areas inside or outside the ROW for a tower not exceeding say. 40 feet, that they will allow that to move forward with an administrative approval and not require a CUP. We are writing it to always require a CUP if it's a new tower. Council Member Kai said that if we have the Planning Commission approve these, although it's easier for us, but it takes away from the Council even though the Council can appeal the decision. So he -feels like the Council should have the final say no matter what. In a public ROW where the smaller towers go, what if they need room for cabinets, will they be paying the town a fee for additional space? Mr. Cassidy responded that that is one of the questions he was going to ask about — the Council's appetite for fees. The new statute addresses fees in the ROW because some communities are really aggressive about fees for use of the ROW. The new legislation says you can charge fees but no more than necessary to offset the local government's cost, and not to exceed $50 per year per location. And you can only charge that if other users in the ROW are being charged for use in the ROW. So if you have a six cubic foot addition to a light post, it and all of its associated equipment is considered one location. The other thing the legislation says is that you can only charge that if other users of the ROW are being charged for the use of the ROW. We have had this discussion in the past., but as you know, we don't have a general fee for other utilities to use the ROW, And one of the things that always comes up when we have a conversation about whether to charge other users of the ROW fees — TRICO, TEP etc., is that we know that their customers are our citizens and those fees will be passed along. If we decide we really want to take advantage of the $50 per year per installation, we would have to revisit the October 10,2017 Study Session Minutes 3 decision about other users. Council Member Kai said that it seems that it really ties the hands of Council for the small cells. Mr. Cassidy said there is a slight modification upward if it's something like a monopole in the ROW, and even then you have to show how it costs the town $150 a year, so you have a burden to show your actual costs. It almost seems not worth the hassle. In the draft, we haven't put any fees. Council Member Ziegler said she thought it would cost the town over $50 to do the administrative work and is not in favor. She has not always been a proponent of cell towers, but we need to remember that we are doing this for our citizens so they can have better cell reception. Council Member Comerford asked about putting six cubic feet on top of a light pole. Mr. Cassidy replied that state legislation points out that if the pole doesn't have the structural integrity to hold onto that six cubic feet of equipment, then the provider must pay to replace the pole, but that's not a basis for us to deny them. Council Member Comerford said that concern is that it doesn't turn out to be a monolithic structure even though we need the technology. Mr. Cassidy said the replacement poles look the same but are a little more robust. The thing that is different is that six cubic foot thing is like an antenna arm that sticks up. The law does allow us to impose cloaking requirements so that you don't see the bare antenna. In any event, you will see an appendage on all the lights. There are photos in Ms. Schwab's materials to show how you determine the height of the pole and where heights are measured from. when we bring it before the public hearing process, there are lots of photos, Council Member Bowen asked if all the CUPs come through the Planning Commission and only come to Council on appeal. Mr. Cassidy responded that that is the normal CUP, but for the wireless communication facilities, all the CUPS carne to Council right now. He wanted to know why keep that provision or exception in place. Council Member Kai said that Council is closer to the residents. Cell towers are pretty controversial. The small ones we're talking about in the ROW that repeat back and forth aren't as controversial. He thinks if there's a big tower, approval should come from Council because people will be coming forward to complain about the big towers. Council Member Bowen disagreed, as similar people are going to be coming forward each time to complain about a cell tower, so if we force them to come forward after it has been approved, then we can deal with it as it comes up, but if we have to approve it in the first place, then there's the chance that they will gin up everyone from one side to the other to pack the chambers to complain about it, so I would rather deal with it last. Council Member Bowen asked how many sites are we talking about. Mr. Cassidy said it's hard to know, but there could be as many as 400 sites in a town like Marana; however, we don't have 400 poles in Marana. If we started charging for those, we would have to figure out how to charge everyone. We would have to charge everyone if we charged them. Mr. Cassidy concluded his presentation and he thanked Council for their time. He will bring those items forward for the public hearing. D3 Relating to Development; discussion of proposed comprehensive revisions to the Land Development :ode's sign regulations (Frank Cassidy & Brian Varney). Mr. Cassidy presented. Brian Varney was also there to answer questions, A couple of years ago the Supreme Court heard Reed vs. To-w)n of'Gzlber t wherein the Court unanimously said the Gilbert regulation was unconstitutional. In its decision, it calls into question any content:-based regulation, which means if you have to read the sign to know if it's legal or not, it is content-based. Under the Reed case, if you can regulate the sign with a time, place and manner restriction — how it's built and where it"s put without having to the read the sign, that is the best kind of regulation after Reed. There have been cases from lower courts since the Reed case (the Reed case came from the Ninth Circuit Court) that thought the Reed case October 10,2017 Study Session Minutes 4 was fine even though it was overruled by the Supreme Court. But our general theme in this rewrite has been to minimize the content-based regulations. we have construction signs, etc. where you have to read the content of the sign to know whether it is legal. what our draft does, which is not included in the packet because we wanted policy feedback first, is to more liberally allow signs to be located inside a development. A good example is the 1HOP sign at Cortaro. To have that sign where it is relative to 11JOP, 1140P purchased a sign casement that reached over so that it: could be treated as an on--premises sign. Under new regulations, the sign premises would be the entire development where the sign is located. Under the new rules, the 1HOP sign would be fine in any case. The sante would be true of any other shopping center. we still have some regulations that deal with the exact property where the sign is, the sign property which it will be called in the new regulations, but you have to have the signature of the owner of the sign property before you put a sign there. Another thing about the new draft, on Cortaro Road west of I-10, the right of way (ROW) where Eegee's and the bank are is quite wide, so when those businesses first came in they wanted signage along Cortaro but that was in the town ROW, but as a matter of practice we treated the ROW adjacent to someone's property as being part of the property. They do get a license from the town. Under the new regulation, we said if you're in a situation where you're getting a new license from the town for adjacent ROW, that's considered part of the sign premises now. The new draft regulation increases the height and area of new freestanding signs but gives an incentive for having a better quality of sign. A lot of signs aren't that attractive. If they don't take advantage of the incentive, the sign would have to be smaller. Finally, we are proposing to change the way electronic message signs work. Right now only half of your sign face can be a message display, and our current regulation says the message can only change every 30 seconds, When the conditional use permit came forward for the sign at the McDonald's at Marana Main Street, they proposed having it change every 7 1/2 seconds, and that was approved. ADOT rules say you can change every 7 '/2 seconds. we are proposing to allow the entire sign to be an electronic message and to allow the message to change every 7 1/2 seconds. Our draft rule on temporary signs in residential areas very broadly allows residential yard signs with no limitation on what the signs can say, and there isn't a limitation on the number of signs. It is only the total area of all yard signs that is regulated, and can't exceed nine square feet is current, and you can have little signs and no regulation on what they can say. For commercial areas, the new regulations broadly allow banner, post signs, quills, A-frame, T-frames and for the most part there is no content restriction on them. Council Member Comerford asked if those signs are allowed but the content cannot be restricted. Mr. Cassidy stated that currently the code says it has to advertise some business within a certain distance. Mayor Honea stated that we have a history of disaster with A.-frames falling in the street or left on the sidewalk at night. He understands we don't limit A-frames on the business property; he would hate to see allowing A- frames anywhere. Mr. Cassidy stated that in the current draft we prohibited all signs in the ROW unless it's one of those that is licensed adjacent to the property, It's that subject of how strict we were that has caused us to seep. Council guidance, particularly on signs in the ROW, Generally, the A-frames in the ROW would be prohibited. As an aside, Mr. Cassidy stated that the Ninth Circuit Court said it is okay to distinguish between types of commercial signage. This is based on a pre-Reed Supreme Court decision. Under this theory, you would separately, allow certain kinds of commercial signs in the ROW like real estate signs and maybe even yard signs, but prohibit other commercial messages in the ROW. The catch on this after Reece is that once October 10,2017 Study Session Minutes 5 you allow any kind of commercial sign in the ROW you have to allow all non-commercial signs in the ROW -- opinion signs, political, religious, etc. Council Member Comerford asked if we can allow real estate signs, don't we have to let everyone? Mr. Cassidy responded that no, under the later Ninth Circuit case, they said it's still okay to distinguish between types of commercial speech. So a real estate sign is a type of commercial sign. You can distinguish between that and the general Pizza For Sale sign. Council Member Comerford said that then we can actually say we will allow private yard sale signs, real estate signs, maybe church signs for services, etc. Mr. Cassidy stated that you have to allow those if you allow anything else. Council Member Comerford: then anybody who is not commercial can put a sign up for anything. Mr. Cassidy, yes, that's right for a non-commercial message. once we give permission, anyone can put up a sign that is non-commercial in the ROW. Council Member Comerford then asked if it is possible to have space restrictions prohibiting signs in front of other signs without a certain amount of space between thee.. She is also concerned about having a litter of temporary signs once an event is over. Mr. Cassidy said yes, we can have separation requirements between signs and you could even have duration restrictions since mostly what you are going to be dealing with are yard sales and real estate signs, and would still require a permit and the permit would be for the guidelines Council sets. Also, we can have regulations that require them to be taken down after the event, or with real estate signs you can have a durational limitation on them. or you can allow them to stay up for the entire time that a house is for sale. If you allow real estate signs to be up Friday to Sunday, then the same rule would apply to church signs, you have to allow church signs for the same period of time. So the rule that Council approves has to be the same for everyone. Mayor Honea asked if you. earl differentiate between residential and commercial on signs and have two different rules. Mr,, Cassidy, yes, our draft rules do that. In commercial areas the signage is more liberal. The other thing we have been talking about is charging the fees in the temporary Flow based on how long they plan to keep them up. So a real estate company which would want to have the right to put up their signs throughout the year, and they would probably get the longest duration for permits they could. So if we had an annual permit, we could potentially charge a hefty fee for an annual permit. If someone is just having a yard sale, and they put up a sign for the weekend, that's a small fee. In terms of the administrative burden, we can make it all web- based. They can pay for it online, print out the permit and attach it to the sign so that our enforcement officer can check it and make sure it correlates to the fee. Mayor Honea asked if Long Realty comes in for a permit and they have 300 agents, would one permit work for them. Mr. Cassidy replied that would not be the case. For instance, Tierra Antigua has a certain number of signs permits in oro Valley that it has paid for, so if you are a Tierra .Antigua agent and you want to put up a sign in oro Valley, you call the home office and they assign one of those permits. we would assume the sane thing would happen in Marana. The big agencies would buy a certain number of annual permits and dole them out to their agents. Council Member Comerford asked if you have to have a certain number of permits per sign. Mr,, Cassidy, presumably, yes, but the agency can handle that, we are hoping they will only put up the number they need to have. Council Member Comerford stated that it also seems to make it restrictive for someone who is not a big real estate company, Mr. Cassidy concurred and said he is sure there will be discussion once staff brings this to the public hearing process. Council Member Ziegler agreed with Council Member Comerford. Discussed ensued as to the number of permits for one number. Nor. Cassidy said that it doesn't necessarily need to be a different permit number, but those are all administrative details that can be worked out. October 10,2017 study session Minutes 6 Mrs Cassidy concluded stating that the final thing is that nothing is going to change the state law preemption on political signs even though our regulations won't necessarily say anything special about political signs. That's a content-based regulation. The state preemption prohibits the town from removing political signs from the ROW during the election season, and as long as you comply with the rules set by the state, we will still be in compliance with state law. Right now the sign code lists political signs as a separate sign type, and then essentially adopts the state regulation. His concern is that it crosses the line in Reed. In the peed case, one of the problems the Supreme Court had with the Town of Gilbert's regulation was its treatment of political signs. .And the Fawn of Gilbert said we treat theirs that way because state law requires us to, and the court didn't care. So what we're trying to do is kind of take the Scottsdale approach, and that is that all signs in the ROW including political signs are illegal, but we can't: enf or.ce thein at certain times of the year. We will go ahead and push through with our sign draft. Gilbert Dav"dson asked if`there can be differentiated fee structures regarding enforcement on yard sale signs. We have a requirement to get a water heater permit, and the vast majority of the public doesn't carne here and get a water heater permit. They go to the store, buy a water heater and get it installed, and we don't know anything about it. So could they get a permit at no cost to make it easier on the homeowner? I would worry about the enforcement and making them pay for some items on a Saturday. Mr. Cassidy responded, yes, because the law as interpreted right now by the Ninth Circuit Court allows you to distinguish between types of commercial messages. We could even distinguish for the fee that we charge for yard sales with the recognition that there is almost no enforcement on those. The only rule that's come out is to have a rational basis for distinction between your commercial signs. Council Member Comerford would like to see user friendly regulations. Council Member Ziegler concurred with Council Member Comerford. Council Member McGorray asked if these laws apply to a private neighborhood. Mr. Cassidy responded, yes, the sign regulations generally do apply on private property, including private streets. It's just that with respect to For Sale signs in the private ROW, it's ping to be up to the HOA to enforce that. Mr. Davidson's last comment Was that when you think about the ROW, it is a precious resource. There is something to be said about not having clutter. When you think about one extreme of not allowing anything, to Council Member Comerford's point, it's very restrictive and certainly not business-friendly and life friendly. We've seen communities that go that route, and they have a reputation that doesn't reflect what is taking place on a daily basis in the community. The other extreme is a f ree-f or-all, and it looks like NASCAR. What we are trying to do is find that right balance to restrict commercial and create a system that allows where we know people need to sell their home and have yard sales, and have those activities in the community. Hopefully, that's the direction that everyone feels comfortable with. EAE C UTNE SESSIONS Pursuant to A.R.S. § 38--431.03, the Town Council may vote to go into executive session, which will not be open to the public, to discuss certain matters. E2 Executive Session pursuant to A.R.S. §38-431.03 ( Council may ask for discussion or consultation for legal advice with the Town Attorney concerning any matter listed on this agenda.. October 10,2017 Study Session Minutes 7 FUTURE AGENDA ITEMS Notwithstanding the mayor's discretion regarding the items to be placed on the agenda, if three or more Council members request that an item be placed on the agenda, it must be placed on the agenda for the second regular Town Council meeting after the date of the request, pursuant to Marana Town Code Section 2-4-2(B). ADJOURNMENT Mofioi� to a4journ at 70-13 p.im- by Council Member Bowen, second b-1.9 Council Memhei,.M(-Got-r(q. Pttvs,ee/5-0. CERTIFICATION I hereby certify that the toivgoing are the true and correct minutes of' the study session/presentation of the Marana Town Council meeting held on October 10, 2017, 1 further certify that a quorum was present. nsor � Jo elyn C. onson Town Clerk MARANA A7, F S TA B L I S H V D 1=17'7 October 10,2017 Study Session Minutes 8