Fountain Hills unanimously rejects 141-bed senior living rezoning after developer's federal lawsuit threat
FOUNTAIN HILLS, ARIZONA — June 6, 2018

Fountain Hills unanimously rejects 141-bed senior living rezoning after developer's federal lawsuit threat

Fountain Hills council held public hearing on controversial senior living facility rezoning amid substantial neighborhood opposition, procedural disputes, and developer legal threats, while also approving town budgets and wayfinding sign design concept.

Fountain Hills Rejects Senior Living PAD After Developer Threatens Federal Lawsuit and Faces Overwhelming Resident Opposition

In a contentious public hearing that stretched past 8 p.m., the Fountain Hills town council voted unanimously 5-0 to deny Ordinance 18-03, rejecting CA Ventures' redesigned 141-bed senior living facility proposal at the northwest corner of Saguaro Boulevard and Trevino Drive. The decision came after the developer's attorney made an extensive legal argument threatening federal civil rights litigation and citing alleged violations of Arizona open-meetings law, town ordinances, and constitutional property rights—remarks that provoked sharp rebukes from council and vice mayor alike.

The rejection was striking not only for its unanimity but for the depth of community mobilization against a project that had already been substantially revised. CA Ventures, represented by Snell & Wilmer LLP partners Nick Wedding and Jason Eby, had invested considerable resources in responding to citizens' concerns following a council tabling in February 2018. Yet the redesign—cutting unit count from 157 to 141 beds, reducing building height to 25 feet (with 50 percent of the project one-story), and moving building setbacks away from northern neighbors—proved insufficient to overcome strategic-plan conflicts and the town's own staff findings of general inconsistency with voter-approved growth goals.

Key Speeches

"This application is no longer a major amendment to the existing hemingway pad; rather the current application proposes a project that meets minor amendment criteria. Administrative authority is grounded to the town manager, which approval cannot be unreasonably delayed or denied. Ca ventures' constitutionally protected property interest in the application and in the permit is well established. Ca ventures can seek relief against the town under section 1983 of the civil rights act potentially the fair housing act and other laws." — Jason Eby, Litigation Partner, Snell & Wilmer LLP

"You know, I don't like to be threatened. And you're threatening us. So if you're going to threaten us, I think we should have the right to say no. I disagree with everything you've said." — Vice Mayor Dennis Brown

"I for one don't react positively to intimidation. But I'll also add, councilman, councilmen, we just want to make sure that we're not getting to the content of the letter. Those are legal issues and the town attorney's office will address them at an appropriate time." — Council Member Magazine

"The bottom line is the developer is trying to force fit this project on the proposed site. The question that begs to be asked is, is the right project on the right location? It's like trying to fit a round peg to a square hole." — Council Member Leger (remote)

"We grant [rezonings] too often and too many waivers and too many variances. Citizens rely on the plan and existing zoning. If we're going to ignore the plan and zoning, why have it?" — Council Member Magazine

Timeline

Opposition

Number of speakers: 12 speakers against; 2 declined to speak (Michelle Crook, Wendy Mueller).

Main concerns:

  1. Strategic Plan Deviation: The 2017 strategic plan explicitly warned against becoming "Sun City East" by over-concentrating senior housing; residents cited this concern repeatedly and directly; the facility's visibility from Shea Boulevard gateway contradicts goals to attract younger families.

  2. Building Height Measurement: Ted Bell and others challenged the methodology of measuring from existing grade rather than finished grade after excavation, claiming the building is effectively 30-35 feet tall (by stacking doorways), not the stated 25 feet, with 50 percent of the structure exceeding code.

  3. Parking Insufficiency: Multiple speakers (John Bursta Myers, Peter Gray, Tom Lindsey) noted that 66 spaces are insufficient for 141 beds plus 85 estimated full-time staff, plus visitors, medical professionals, and delivery vehicles. Bursta Myers cited personal experience at Fountainview Village, where employee parking overflows into nearby lots. Tom Lindsey noted that if the facility later converts to apartments, parking would need ~180 spaces.

  4. Traffic & Intersection Safety: Speakers highlighted the intersection of Saguaro and Trevino as already congested (Circle K, McDonald's, Senior Taco) and noted that even disabled elderly residents generate ambulances, delivery trucks, and visitor traffic. Elinka Zermatt expressed concern about pulling onto Saguaro Boulevard from Palmer Drive.

  5. Dark Sky Ordinance Violations: Elinka Zermatt provided detailed analysis: the applicant proposes ~20 parking-lot lights at 20 feet height (5 feet above the 15-foot code limit). ADA compliance requires additional lights for accessible parking. The proposed lighting exceeds dark-sky limits and conflicts with federal 42 USC § 1801 (ADA) requirements. Residents already successfully pressured the VFW to redirect flag lighting; this project threatens far greater light trespass.

  6. Sign Size & Visual Impact: Ted Bell noted the proposed sign is 55.7 square feet, exceeding the stated 50-foot maximum, and stands 11 feet 4 inches tall—a "billboard" welcoming visitors with a senior facility rather than a gateway representation of Fountain Hills' character.

  7. Zoning Compliance & C1 Standards: Peter Gray and Larry Myers argued the property was purchased as C1, and a project of this density and use should revert to C1 and be reviewed under R5 residential standards rather than granted a PAD waiver. The use does not meet C1 criteria ("modest, well-designed commercial enterprises to serve a surrounding residential neighborhood").

Most compelling arguments:

Organized groups: None formally named, but residents created detailed exhibits, maps, and comparative analyses (e.g., Ted Bell's doorway-stacking height analysis, Larry Myers' resident opposition map, Peter Gray's two-graphic presentation on building length relative to other town structures).

Support

Number of speakers: 0 public speakers in favor during the hearing. (The applicant and architect presented; no citizens spoke for the project.)

Staff position: Marissa Moore recommended approval despite acknowledging general plan inconsistency, relying on density comparisons to nearby R5 projects and the applicant's willingness to address parking, lighting, and landscaping at site-plan stage.

Project Details

Vote Breakdown

Outcome & Next Steps

Ordinance 18-03 (rezoning to Fountain Hills Senior Living PAD) was denied unanimously. The property will revert to Hemingway PAD (C1 zoning) unless the owner or developer files a new application. Item 11, which would have addressed the expiration and extension of the Hemingway PAD, was withdrawn by town staff and town attorney pending proper public hearing notice. The town attorney noted that any action to extend or revert the Hemingway PAD requires a public hearing, which was not properly noticed on tonight's agenda. This item will be re-agendized at a future meeting. No conditions were placed on the denial; no appeal or reconsideration timeline was mentioned.

Controversies & Context

Developer Legal Threats and Procedure Allegations: Jason Eby devoted his opening remarks to arguing that the town violated its own ordinances and state/federal law:

  1. The February tabling without untabling prior to the next regular meeting constituted a denial without a public hearing, violating CA Ventures' due process rights.
  2. The Planning & Zoning Commission should never have re-heard the application because the council did not formally refer it back; neither the PAD boundaries nor zoning district was modified, so re-submission lacked legal authority.
  3. The May 24 P&Z hearing lacked required findings and rationale, rendering the 5-2 denial recommendation void.
  4. The redesigned application now meets "minor amendment" criteria, triggering administrative approval authority by the town manager (not council discretion).
  5. The town's handling constitutes "arbitrary and capricious" action threatening CA Ventures' constitutionally protected property interests under 42 USC § 1983 (federal civil rights act).
  6. Eby threatened federal litigation seeking "significant monetary damages against the town and any individual who has been complicit with any violation of the law or ca ventures' rights."

Vice Mayor Brown's immediate response was blunt: "I don't like to be threatened. And you're threatening us." Council Member Magazine stated he did not "react positively to intimidation," though the town attorney noted legal issues would be addressed at an appropriate time. No council member engaged Eby's procedural arguments on substance during the meeting.

State Preemption & Property Rights Context: Eby's invocation of 42 USC § 1983 (federal deprivation of rights under color of law) is a serious escalation. Section 1983 allows private parties to sue municipalities and individual officials for damages if they deprive a person of constitutional rights. PAD rezonings are typically considered legislative acts and discretionary; however, Eby's framing suggests he views the town's procedural irregularities (tabling without untabling, unauthorized re-hearing) as arbitrary denial of a vested property right in the existing Hemingway PAD. Arizona courts have recognized that amendments to PADs can constitute regulatory takings if the town's action is irrational.

General Plan Consistency & Voter Intent: The 2017 strategic plan revision, which residents repeatedly cited, is a voter-approved document. The plan explicitly warns against becoming "Sun City East" and sets as a goal "attracting families and working professionals" to rebalance the town's aging demographic. Council Member Magazine and Council Member Leger both emphasized that the general plan is binding—"If we're going to ignore the plan and zoning, why have it?" This reflects a broader tension in Arizona zoning law: while PADs are powerful tools for flexibility, they should not override the comprehensive plan without overwhelming community benefit.

P&Z Commission Reversal & Lack of Findings: Eby noted that the Planning & Zoning Commission unanimously recommended approval of the original (larger) proposal in January 2018, then reversed course with a 5-2 denial in May 2018 after the applicant redesigned in response to council direction. The May 24 denial motion allegedly included no written findings or oral rationale. Under Arizona state law and Fountain Hills ordinance, zoning decisions must include findings supporting the decision. The absence of findings may constitute grounds for appeal or legal challenge, though the town attorney did not address this during the meeting.

Process Procedural Tensions: The meeting revealed additional procedural confusion. Council Member Magazine attempted to move "postpone indefinitely" after the main motion (Option B design selection) had been voted on, rather than while it was pending. The town attorney noted this was improper (a secondary motion must be made before roll call). This triggered a 3-2 motion to reconsider (approved), allowing the procedural correction. While ultimately the wayfinding decision stood, the moment underscored the precision demanded of legislative procedure—a lesson Council Member Magazine remarked he "should have gone to law school" to understand better.

Community Mobilization & Trust: Twelve public speakers appeared in opposition, representing sustained organizing. Larry Myers presented a map showing nearly 100% red and black (opposing) parcels within the surrounding neighborhood. Mary Lou Robinson noted that "nearly 300 people" had been involved in the process, energizing civic participation. Yet the same mobilization left unanswered the question: why did the developer believe neighborhood meetings would yield approval if nearly every participant opposed the project? Peter Gray and others suggested the developer misrepresented the success of those meetings.

Duration

Other Notable Items

Wayfinding Sign Program Design Concept Selection (Item 7): Hunt Design presented two kinetic sculpture sign concepts (Concept A: modern, gabion/corten steel with blue fountain light; Concept B: vertical desert-inspired, corten steel with soft fountain/dark-sky lighting). The council voted 5-0 to select Concept B and authorize construction documents ($95,500 design already spent; ~$125,000 fabrication/installation estimated; ~$300,000 total project cost). Council Member Magazine opposed on grounds of "frivolous spending" messaging during a property-tax campaign, but voted yes on the final design. A procedural error (Magazine's motion to postpone made after the vote rather than during the motion) triggered a 3-2 motion to reconsider, though the substantive decision (Concept B approval) remained unchanged.

Town Budget FY 2018-19 (Items 5-6): Approved 5-0, $32.414 million final budget, reduced ~$7 million from tentative due to uncertainty over a property-tax initiative vote. Includes capital and operating budgets for all town services.

Departing Council Member Cecil Yates Recognition: Six-year council member (11 years town employment) provided final public comment updating council on Valley Metro infrastructure (66 miles rail, $10 billion investment, 13% regional ridership, tech savings $1.5M annually) and GPAC economic development (record private investment, 34 projects tracked, manufacturing growth, 8-9 month approval vs. California's 24-36 months).

Pastor Ken Brown Invocation: Opened meeting sharing that he underwent brain surgery six weeks prior and no longer has Parkinson's disease symptoms, expressing gratitude for the medical community.