Planning commission split on inadequate due diligence case

Bob Voris
Bob Voris

CAVE CREEK – Planning Commission Chair Bob Voris announced during the Aug. 3 meeting that there were no cases scheduled for the August and September regular meetings.

However, he announced there will be two more general plan input meetings scheduled for 6 p.m. on Aug. 17 and Sept. 21.

Topics for public input on Aug. 17 include:

  • Land Use Element
  • Water Resources Element
  • Open Space Element

With commissioners Susan Demmitt and Peter Omundson absent and Paul Eelkema appearing telephonically, the planning commission reviewed the first case, an application for a general plan amendment to change the land use for a 5.83-acre parcel on 58th Place from medium density residential (R-35 or R-18) to Desert Rural (DR).

Planning Director Ian Cordwell explained the 2005 general plan currently in effect provides for the process to apply for general plan amendments and pointed out what was before the commission was not a rezoning.

Cordwell said when the applicants, Tasso and Sheree Koken, bought their property they were under the impression the lot size allowed them to have ranch animals.

Voris reiterated this was not a rezoning request.

Commissioner Dick Frye asked if they were to approve the general plan amendment if there was any obligation on the town’s part to rezone the property.

Cordwell stated there was not.

Tasso Koken apologized to the room full of people for all the “consternation” he’s caused due to being misled by his realtor of his property rights when he purchased the property a year and a half ago.

Koken said he was trying to correct the problem.

Voris looked at the full audience in attendance and asked how many people in the room were in favor of the general plan amendment.

One man raised his hand.

When Voris asked for a showing of hands of those opposed, the rest of the approximately 60 attendees raised their hands.

Lynn Bethurem, president of the Rancho Mañana Homeowners Association, spoke in opposition “for a number of reasons.”

Bethurem said the property was in close proximity to homes in R-35 zoning.

She said, “I, personally, feel very strongly it stays that way.”

Commissioner Ted Bryda asked how many homes there were in Rancho Mañana within 200 feet of the subject property.

Bethurem said there were approximately 40.

Commissioner Reg Monachino asked where Galloway Wash was in reference to the property.

Cordwell said it runs across the top half of the property and along the edge of Rancho Mañana Golf Course.

Associate Planner Luke Kautzman displayed an assessor’s map.

Cynthia Link said she lives approximately 75 yards away and vehemently opposed the change and believes it would result in a loss of market value and marketability of her home.

She said the smells, flies and health threat contributed to the annoyance and asked the commission to please not permit the change.

Faith King, another Rancho Mañana resident, said she was opposed and stated the change would create a Desert Rural island.

She said, “I can’t believe someone can buy six acres and not know what the zoning is,” and claimed it was not in the best interest of the surrounding areas.

King wanted to know what Koken’s proposed business use was for the property and noted the slaughtering of chickens that had taken place on the property.

Rancho Mañana resident Peggy Coniglio said they were wonderful people and she had nothing against them but the smell is awful and the use just doesn’t work for the area.

Karl Albrecht stated he was not in favor of the request and said it is not fair to the adjacent property owners.

He said, “The general plan is for the benefit of the town, not individuals.”

Also opposed, Darrell Reiner said if the application is approved and the property rezoned they would be able to have up to 200 animals and, because of the size of the parcel, they could subsequently apply to have a commercial ranch, which would allow for a host of other activities.

Edwin Link said he was opposed and most of what he was going to say had already been covered.

Bob Lang, the only person in the room in favor of the application, said he is the closest neighbor to the Kokens and abuts their property on the east.

Lang said he’s owned the property for 38 years, before Rancho Mañana was built.

He said the Kokens have been great neighbors.

Larry Mahaffy also spoke in opposition.

Bryda said he walked the property that day and, noting there are horse properties on the other side of the wash, asked if residents smelled them.

A woman said the Kokens have chickens, ducks and geese.

Merry Colin, who doesn’t live in the immediate area, said she wasn’t either for or against the application and only bought her house on Skyline Drive in October.

Colin pointed out someone said they were retired and this was where they wanted to stay but then they talked about resale.

She questioned what kind of business the change would allow.

Colin stated residents can’t control what goes on outside their subdivision and said the problem was the property owners’ and their realtor’s fault, not the town’s or Rancho Mañana’s fault.

Responding to questions raised, Koken stated, “This is not a business, it’s a family.”

He said they raise animals to eat – organic – due to his wife’s illness.

Koken said they moved here from New Jersey and pointed out the property across the street allows animals and they are adjacent to DR property.

Tasso Koken
Tasso Koken

Koken said because of a noise complaint they killed their roosters but noted there is a dog kennel nearby that produces more noise.

He said they talked about buying three adjacent DR properties and stated there is a horse property closer to Rancho Mañana than his property.

Voris moved to approve the application with Frye seconding the motion.

Frye said his issue had nothing to do with whether the owner has done good things or bad things.

He said, “It’s certainly a borderline situation. I think if this were to change it would cause more problems. I will be voting no.”

Eelkema stated due diligence is imperative when buying property and he too would be voting against.

Bryda said he had mixed emotions and understood where both the applicant and Rancho Mañana were coming from.

Monachino said, of the only properties that abut, none object.

Responding to comments about the washes, Monachino said Galloway Wash goes on for miles and miles and there are horse properties all along.

Monachino said the applicant’s past behavior was not an issue for him but rather an enforcement issue.

Voris said the applicant has a compelling story about his wife’s illness and could identify.

Voris said he drove by the property and the way it lays out would be a good animal property.

However, he cited the Kokens’ failure to do their due diligence while spending two years looking for property to buy in Cave Creek.

Voris called out the poor job their realtor did in indentifying property to suit their needs.

He said their due diligence was inadequate and the people in Rancho Mañana had certain expectations.

The commission voted 2-3, with only Bryda and Monachino voting in favor of recommending approval.

Before citizens left, Voris explained the process and said the planning commission is only a recommending body and if they want their voices heard when the decision is made by council, they need to show up at the Sept. 18 council meeting.

The next case on the agenda was an application for a general plan amendment from medium-density residential to Town Core Commercial (TCC) that would affect approximately 1.5 acres, or a 70-foot wide strip, along the base of five parcels on Brenner Hill.

Cordwell said there would be a transfer of development rights with the intent to preserve the hill but pointed out there are deed restrictions on the five parcels that would have to be resolved by the applicant before any rezoning could be done.

Applicant Pete Spittler said there would be a transfer of development rights per the ordinance passed by council, with a lot-line adjustment for the 70-foot strip of land to be used for parking and would allow for the preservation of the parcels on Brenner Hill behind Outlaw Annie’s.

Peter Spittler
Peter Spittler

Spittler said he operated Hogs N’ Horses (Outlaw Annie’s) for a short period of time and was still working with the owner.

Frye asked who owned the Brenner Hill parcels and if it was the same owner as Hogs N’ Horses.

Spittler said it was owned by Brenner Hill LLC, which is Spittler and a partner and Hogs N’ Horses has a different owner.

Frye confirmed the five residential parcels would then be set aside as conservation and would not be developed.

Eelkema asked how the transfer of development rights worked.

It was explained that it would work much in the same way as the proposed mitigation banking with the state land department but would apply to properties in the commercial core.

During public comment, Anna Marsolo raised the issue of due diligence on the part of the buyer.

Anna Marsolo
Anna Marsolo

She said Spittler bought the five parcels one-and-a-half years ago for $1.5 million.

According to Marsolo, the seller tried to get a general plan amendment in 2009 but was denied.

She said the parcels are part of the Pleasant View Estates subdivision and the deed restrictions since 1948 have specified only residential use for the parcels.

Marsolo said the CC&Rs allow the deed restrictions to be extended for 20 years at a time and they don’t expire until 2019.

She told the commission she would hate to see them recommend approval of a general plan amendment without knowing if the homeowners will relinquish the deed restrictions.

Voris stated the risk resides with Spittler and the benefit is to the town.

He said, “I don’t see value in building homes on the hill.

Marsolo stated, “I really think he should go to the homeowners first” and said she spoke to an attorney friend who said he should get the deed restrictions removed first.

She said, “It’s just my opinion he should do that first before amending the general plan.

Monachino asked, “How do CC&Rs create deed restrictions?”

Marsolo said the CC&Rs are law for the subdivision.

Monachino stated he knows what CC&Rs are.

Marsolo said the recorded deed since 1948 restricted the use to residential only.

Frye said the deed restrictions were placed on the property before it was subdivided.

Marsolo said it is going to expire in 2019 but can be extended by the HOA for another 20 years.

Spittler said he has the very package Marsolo was speaking about and stated he fully intends to go door to door and talk to the homeowners.

Frye confirmed the general plan amendment application only applied to the 70-foot strip.

During public comment Steve Gilbertson said he lives in Pleasant View Estates and was only there to get more information. He said he didn’t have a strong opinion one way or the other but he liked the idea of that area being preserved.

Voris said the opposition they received both stated they opposed rezoning.

Monachino stated it wasn’t clear to him how homeowners change deeds and had reservations about development transfer rights.

Frye said it was a bit of a piecemeal approach to this project but didn’t see this as giving Spittler everything he wants so he was in favor of the amendment at this stage.

Eelkema said he agreed with Frye but was also interested in the big picture of development in the town core and preserving the hill.

Bryda said he didn’t have a problem with doing this now since the stop gap means nothing can really happen until rezoning.

Voris reiterated all the request was for is 1.5 acres.

The commission voted unanimously to recommend approval.

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