BY LINDA BENTLEY | JULY 21, 2010
Thorstenson parcel goes to council with recommendations for approval
CAVE CREEK – T.C. Thorstenson made some progress last Thursday with his third stab at getting his 5.34-acre property on Vermeersch Road rezoned from Desert Rural (DA), one home per 2.5 acres to Commercial Core (CC).
Thorstenson walked away from the planning commission with a 6-1 vote recommending approval for a general plan amendment, with Commissioner Shelly Anderson dissenting, and a more divided recommendation for approval for his rezoning application, with commissioners Ted Bryda, Bob Williams and Anderson dissenting.
During his presentation, Thorstenson dredged up former owner Julie Terry’s claim that 17 feet of his property is commercial. That claim was based on the town’s designation of the town’s commercial core, although the zoning ordinance dealt with such situations and deemed the property to be the majority of its designated zoning, DA.
When Terry attempted to get the parcel rezoned in 2000, council agreed with her site plan for a 74-room/24 casita resort hotel and 19 stipulations.
A referendum was subsequently filed and, on Sept. 11, 2001, citizens overwhelmingly voted to overturn council’s decision to rezone the property.
According to Thorstenson, there are two easements recorded by Maricopa County 10 years ago, one in front of the building that was formerly the Roadhouse and Hammerhead Jack’s and one along the back.
He claimed the only thing holding him back from having access from Cave Creek Road was getting his property rezoned to commercial, which would activate those easements.
However, that’s not exactly the case.
In January 2001, when Terry’s rezoning application was approved by council for a proposed 74-unit/24-casita resort, it was done with the stipulation that an access/parking easement agreement “shall demonstrate that 22 spaces are to be available for exclusive use by the retail center and shall be depicted on the site plan.”
That was before anything was built on the former Roadhouse/Hammerhead Jack’s parcel.
Stipulation 14 of Terry’s rezoning approval stated, “Executed agreements in a recordable form shall be provided to the town allowing ingress and egress to Cave Creek Road through the southern parcel (216-07-009A) as well as a deceleration lane for west-bound traffic on Cave Creek Road. Both documents are to be acceptable to the town attorney in content and form.”
No such agreements appear to have ever been entered into by the two property owners, while Stipulation 17 would have rendered them moot anyway if voters hadn’t beat them to it, stating:
“The rezoning is based upon the proposed site plan dated Nov. 29, 2000 by p/d architects. A detailed request for site plan approval, in substantial conformance with the referenced site plan shall be submitted within two years of the effective date of this approval for rezoning. If such submission is not made in a timely manner, the town council will hear the case to revert to the zoning in place (D-2.5A) at the time of this request (Z-00-02). The approval of the site plan shall become void within a time specified by the town council at the time of site plan approval.”
Even though Thorstenson claims he has 17 feet of commercial zoning and access easements from Cave Creek Road to be triggered upon rezoning, neither assertion is accurate.
Thorstenson stated, “This property has three times the buffer that Walmart has between the store and residences.”
Associate Planner Luke Kautzman told the commission that even with a general plan amendment and rezoning, if approved, the use proposed by Thorstensen for an arena would still require a special use permit (SUP).
Williams asked, “Are we compelled, if we approve the general plan amendment, to change the zoning?”
Planning Director Ian Cordwell responded, “No.”
During public comment, Black Mountain Shadows (BMS) resident Larry Johnson stated, “There’s one question you didn’t ask. If you change the land designation to commercial and zoning to commercial, let’s say he doesn’t do what he says, any use would be allowed.”
Steve Sample, whose daughter is married to Thorstenson’s son, said, “This is my fourth time standing up here in support of this land use,” and stated the site has been “discriminated against.”
He said, “Hundreds of people live in harmony with commercial development. I feel it’s discriminatory.”
Troy Hager from New River said, “I’m a horse person. I think the property should be best used for an arena.”
Jeannette Fish, who introduced herself as the executive director of the Maricopa County Farm Bureau, told the commission, “The Constitution gives us the right to own and use property. You should be able to do what you want with your property,” and said it was a logical spot for public use in Cave Creek, a town that “capitalizes on its Western heritage.”
When Anderson asked Fish if she was speaking on behalf of the Farm Bureau or for herself, Fish replied she was speaking for herself but said many of their members would agree with her position.
Rudy Williamson, also a resident of BMS, stated zoning changes are to the benefit of someone and detriment of someone.
Thorstenson said he pays for commercial sewer despite the fact he is on a well and has two septic systems.
Williams, who moved to recommend approval, said, “This is the third time this has come before me. I agree with Mr. Sample. I can’t believe anyone looking at this parcel thinks it should be anything but commercial.”
During the rezoning hearing, Krautzman told the commission the easements, as recorded, didn’t match up with the curb cuts and access, adding, “Easements aren’t germane to zoning.”
Thorstenson stated, “When approved by the county, it says when the property becomes commercial, the easements would take place.
“I’m not building anything extra. I just want to use what’s there for car shows, charity benefits, stuff for kids …”
Hager said, “Let the young man put an arena in there and make money for this town.”
During public comment, Susan Natker read a statement in opposition to the application from Bob Moore, who was unable to attend, but also said she agreed with him.
Natker said Binkley’s, which might leave if the rezoning goes through, “brings revenue to the town every day they’re open,” while the uses proposed by Thorstenson have no direct financial benefit to the town, as his events generate no sales tax revenue.
Johnny Ringo stated he had been listening to all the pros and cons and said, “This is a Western town and we’re trying to keep it that way. If we’re using it for Wild West Days, why can’t we use [Thorstenson’s property] more often?
Arek Fressadi, who lives in Tucson, was in favor of the rezoning and said, “Cave Creek is a Western Town … A property that sticks out like a sore thumb is a sore thumb. If you don’t like it you can live somewhere else.”
Williamson said he disagreed with the concept that BMS can’t live in concert with commercial, although he shared the concerns Anderson, Johnson and Natker pointed out along with concerns about access.
Because rezoning would mean “everything goes,” Williamson said, “I’m not ready for this.”
Vice Chairman Reg Monachino, while noting the applicant was not committed to do “this concept,” said he supported the change because “we’ve said it’s commercial.”
Commissioner John Ford said he too believed the property and zoning were mismatched.
Before voting 4-3 to recommend approval, Chairman Dan Baxley clarified there were several categories of commercial zoning and the application was for a change to CC.
