On a split of 4-3 the Fountain Hills Town Council has denied a request from the Planning and Zoning Commission to turn over a draft of telecommunications regulations considered confidential through …
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On a split of 4-3 the Fountain Hills Town Council has denied a request from the Planning and Zoning Commission to turn over a draft of telecommunications regulations considered confidential through attorney-client privilege.
In a staff memo prepared for the council discussion, Town Attorney Aaron Arnson stated that “some members of the Planning and Zoning Commission and at least two members of the public have requested a copy of the draft ordinance. Because the draft ordinance and associated staff analysis was prepared in the course of legal representation, the document is confidential, and attorney-client privileged.”
He said that because the privilege belongs to the client, only the council can waive the privilege. Councilwoman Hannah Toth, with the support of council members Gerry Friedel and Allen Skillicorn asked that the council consider waiving the privilege, and the discussion was scheduled for the June 4 meeting.
Attorney Andrew Campanelli was retained in June 2023 to prepare a draft ordinance for Planning and Zoning discussion and council consideration. Arnson said that in October and November of last year he and Campanelli provided legal advice to the council in closed executive session related to the potential risks and legal liabilities related to the ordinance. Following this discussion the council directed Arnson to terminate the agreement with Campanelli, however, portions of his draft were to be considered for inclusion in the final ordinance.
Planning and Zoning Commission members have been working under this objective, but at the same time have been frustrated by not being able to see the complete Campanelli draft. In discussion, members have cited the commissions’ lack of overall expertise in the telecommunications industry and desire to have the complete draft to work with. It has been suggested that since the proposal was prepared using taxpayer dollars to pay the consultant, it should not be confidential.
Resident Lori Troller, who has been at the forefront of the telecommunications discussion since the beginning, told the council at its June 4 meeting that transparency is important for government to work well. “People lose confidence in their leadership,” she said, and also stated that documents prepared in the course of working on legislation should not be considered privileged.
“Failure to provide this document is an insult to Planning and Zoning,” Troller said. “There is no attorney-client privilege related to this.”
“I really believe that this is the property of the citizens,” Skillicorn stated. “We have to trust P&Z.”
Toth said the draft is something the commission should be able to consider. “This is not legal advice and will not endanger the town if it is disclosed,” she said.
“This is a working document Planning and Zoning needs to have access to complete their job,” Friedel said.
Councilwoman Sharron Grzybowski defended staff in the controversy. “Staff has been given a lot of crap about hiding things,” she said. “They are doing what council has told them to do.
“Generally, a draft document is not shared,” Grzybowski said. “It has not been the practice of this town to share drafts. (The council) gave direction to staff and P&Z they would be able to follow.”
Vice Mayor Brenda Kalivianakis said trust is important in this situation. “It is not true that we don’t trust P&Z,” she said. “We trust them, they need to trust us.
“They are doing a good job, we took what we directed Campanelli to provide us in order to write a better ordinance. We can take the good parts and go with the best ordinance we can draft.”
In consideration of a separate but related item the council also rejected a request to combine provisions of the Town Code with the Zoning Ordinance to provide opportunities for right-of-way regulations for broadband infrastructure.
It was noted that the town has no authority in this area as state statute repeatedly makes it clear that rights-of-way are not subject to zoning restrictions.
Toth made a motion to leave the code and zoning as they are but direct the commission to review and provide recommendations for both. That motion also failed on the 3-4 vote.
The Times Independent invites readers to submit their civil comments on this issue. Email AZOpinions@iniusa.org. Bob Burns can be reached at bburns@iniusa.org.
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