An organized citizens’ opposition movement held more sway over the Town Council than the threat of a lawsuit from a developer as the council voted 5-0 to deny an application by CA Ventures of Chicago for an assisted living facility in Fountain Hills.

The council was shorthanded for its June 5 session with the resignation of Cecil Yates to run for mayor, and Councilman Art Tolis was absent.

The town received a letter dated June 4 from Jason Ebe, a litigation attorney with the firm of Snell & Wilmer which is representing CA Ventures in the project.

“We have reviewed the record in this case and have concluded, that CA Ventures’ rights have been violated by the [Planning and Zoning] Commission’s and the council’s respective failures and refusals to follow their own rules, regulations and codes, as well as both federal and state statutes and regulations,” Ebe said in the letter.

He concludes the letter by stating that “CA Ventures will promptly avail itself of all remedies available to it at law and in equity, including 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 Dennis Brown wondered whether it is customary to threaten a lawsuit if a developer does not think things will go their way.

“There are a lot of ways this can be handled,” Brown said. “I don’t like to be threatened.

“You are wrong if you don’t think we should listen to our citizens.”

Councilman Alan Magazine concurred. “I don’t react well to intimidation.”

Proposal

CA Ventures was seeking approval of a Planned Area Development (PAD) proposal for a site on Trevino Drive at Saguaro Boulevard.

The proposal made it as far as the council in February with little public notice. However, the council disliked the architecture and density of the plan and asked whether the developer could improve upon it, as well as meet with neighbors to discuss the concerns that had been brought up. The council voted to table the proposal at that meeting.

At that time the company hired Snell & Wilmer and worked with land use attorney Nick Wood to work on changes to the plan. Wood and project officials met with neighbors five times to discuss items ranging from density, building height, traffic and landscaping.

The developer returned to Planning and Zoning in May with a scaled back plan that includes a 126,000-square-foot, two-story structure with a 78,000-square-foot footprint. It would include 141 beds for assisted living and memory care. An independent living component was removed from the plan to reduce the size.

The commission, which had recommended approval with stipulations in January, voted 2-5 in May to recommend the council deny the plan.

Wood has insisted that CA Ventures has done all, and even more, that the town and residents have asked for to improve the project.

Legal threat

Ebe said it is extremely unusual, even unheard of, for a project to go back to the planning commission for rehearing after the developer has reduced intensity related to underlying zoning standards, reduced the overall building height from three (40 feet) to two (25 feet) stories, with the majority of the structure now being single story, and reduced the total density of occupancy that was approved by the commission earlier.

“Moreover, it is preposterous that…the commission would reverse its original unanimous recommendation of approval and now recommend denial,” Ebe said. “It is especially disturbing in light of the fact that CA Ventures did exactly what was asked of it by making the myriad of significant ‘reductions’ to the size and scope of the project.”

Ebe said the code violations related to the application include indefinite tabling by the council; returning the proposal to the commission without council action, a lack of ‘findings’ or reason for recommending denial from the commission as required by Town Code and a disregard for CA Ventures’ right to have the proposed changes processed as a minor amendment and handled administratively.

“The town’s failure to follow applicable law in processing CA Ventures’ application and the commission’s reversal of its unanimous recommendation after CA Ventures had satisfied all the requirements for approval, constitute arbitrary and capricious actions that threaten to deprive CA Ventures of its constitutionally protected property interest,” Ebe said.