Date: July 17, 2009

To: Planning and Zoning Commission

From: Department of Community Development

Subject: Case No. CUP-02-04: A request for a conditional use permit for an open air railroad museum with miniature train rides. The property consists of 20 acres in the General zone.

Applicant: Robbie Diehl, Williams, Arizona

Owners: Robert & Amy Diehl, Williams, AZ & Herald Arnt, Wickenburg, AZ Supervisorial District: #3 Matt Ryan

Location: The property is located at 1035 E. Hoctor Road east of Route 64, and is identified as Assessor’s Parcel Numbers 202-59-003F & 003G.

SUBJECT PROPERTY AND SURROUNDING LAND USES

The subject property consists of two 9.6 acre parcels under separate ownership. The eastern most property is developed with a manufactured home and detached garage. The western property is vacant except for the railroad tracks that currently traverse both properties. The site consists of generally flat terrain with vegetation limited to native grasses and juniper trees.

Surrounding properties include one acre lots within the Lake Kaibab Park Subdivision directly to the west and south. These lots are mix of developed and vacant parcels with most of the development closest to the highway and Hoctor Road. Other properties to the east and north are similar 10 acre plus parcels in the General Zone.

REQUEST

A conditional use permit is requested for an open air railroad museum that offers miniature train rides.

BACKGROUND

The applicant has established as part of a personal hobby a miniature railroad in association with an existing residence. The tracks currently traverse two separate parcels of land under separate ownership. At some point the applicant began advertising to the general public for free rides on the train. The Community Development office learned of the train from the applicant when they called to find out if the use was possible at their current location. Staff’s initial reaction from the description was that this was an amusement type attraction that would require commercial zoning. The applicant was asked to attend a pre-application meeting to further discuss their proposal. The applicant did not show for the pre-application meeting and staff assumed that the applicant was not pursuing having public train rides at his home.

Later staff received a copy of the Williams Newspaper which did a front cover story on the train ride which led to the discovery of the applicant’s website. A notice of violation was sent to the applicant. The applicant then arranged a meeting with Supervisor Matt Ryan and Community Development Director Bill Towler to discuss the issue. It was discussed whether it was possible to apply for a conditional use permit as a cottage industry for the train rides. The applicant was directed back to the pre-application meeting. Staff was in agreement at the pre-application meeting that the train ride did not meet the definition or fall under the guidelines of a cottage industry. Staff suggested that the applicant could submit for a conditional use permit as an open air train museum based on the desire to provide an educational experience for the public as a non-profit entity. Staff directed the applicant at this meeting not to operate the train for public use until a conditional use permit has been obtained and all conditions met. The use has been in continuous operation since at least March of this year.

PROPOSED OPERATION

The Redlake Junction Railroad heritage Preservation Society which is made up entirely of the applicants of this request is an Arizona Non-tax exempt non-profit corporation registered with the Arizona Corporation Commission. The applicants do not have 501C3 status at this time and may possibly pursue it at a later date. The applicants are proposing to operate the train rides on Fridays, Saturdays and Sundays from 10 am till dusk. The train ride is free but donations are accepted. The applicants would also host small groups during the week. The narrative for this report states they have a cindered parking lot that can accommodate up to 15 cars. There are no restroom accommodations proposed for the public with this application. The applicant has stated to staff that restrooms are not required by state law. The Redlake Junction Railroad is 1.5 inch scale and operates two live steam locomotives. The train holds several people and the ride is about 15 minutes long. Guests take pictures by the engine and ask questions after the ride so a train can run about every 45 minutes.

Staff has asked the applicant how many people can ride the train at one time and who drives the trains. The applicant has provided total ridership numbers for the current operation. The most people who rode the train in one day were 51. The applicant (Mr. Diehl) states that he runs the trains. Staff is assuming that both trains cannot run at the same time with passengers since there is only one engineer. There are no outside employees but staff does not know if there will be volunteers associated with this use. The applicant does not understand why staff would want this information for the record but since this is an unusual operation staff is trying to determine the traffic generated by this use and to determine an adequate parking area.

The applicant does use the railroad for a personal hobby and has friends and other enthusiasts to the property to share the tracks. It may be possible for the applicant to hold a couple events per year for other train enthusiast.

ANALYSIS

When staff visited the property to post this case the site was extremely well maintained and the tracks were completely unseen from Hoctor Road. Visual appearance is one of the most important considerations at this site for several reasons. First, because of the flat and open terrain and the site is visible from several residential properties. The tracks are most visible from Red Lake Road and several residential properties to the west of the subject site. The applicant’s site plan does propose adding additional tracks along the front of the property and across the existing driveway. The proposed track expansion would certainly make the train operation more visible from Hoctor Road, as well as conflict with public traffic entering and exiting the driveway. Staff would recommend that the applicant reconfigure this extension to not interfere with the public entrance to the property.

There was no signage that advertises the use of the rail road at this site or off-site and none is proposed with this application. The parking area seems a bit smaller than the applicant’s description and appears to accommodate more like 8 to 10 vehicles based on the requirements

for a parking space. It is difficult to adequately determine parking as staff does not have a scaled site plan for the property. A scaled site plan will be necessary in the future to make sure adequate parking areas and other required improvements are adequately addressed. The existing parking area also includes parking for the existing residence. The parking spaces will need to be delineated and certainly railroad ties could be used as bumper stumps to do just that. The site is accessible via Hoctor Road which is a paved county maintained road. The driveway and parking areas are currently cinder which is acceptable for residential use but it not recommended for commercial scale operations. If this use is approved staff would recommend that in the future this surface become compacted ABC in accordance with the County Public Works Department requirements.

There are a couple of improvements that the applicant would need to make to the overall site in order to comply with Building and Health Codes for places of public accommodation. This includes the provision of restroom facilities. Based on the number of riders provided by the applicant both a men’s and women’s restroom would need to be provided. Staff has stated in the past that they could support an initial time frame for this use with chemical toilets. Both toilets would have to be ADA accessible and hand washing facilities would also need to be provided. There will need to be at least on ADA parking space and an ADA accessible walkway from the parking space to the train and restrooms. The building department would also need a site plan that delineates the public areas of the site to determine if any other improvements would be necessary. The building department would also want to review the storage of any fuel on site especially liquid based. The applicant states that that one of the locomotives is an oil fired train and uses approximately 5 gallons of fuel a day. Staff would recommend that a special inspection be performed by the building department to ascertain if the fuel and equipment storage is adequate as well as review other site improvement requirements.

No outdoor lighting is proposed for this use, but it is worth mentioning that outdoor lighting should be kept to a minimum, and downward-directed, fully shielded fixtures should be employed to minimize light pollution and light trespass onto neighboring properties. Any new lighting added to this site for this use shall only be permitted with a lighting permit. Staff is unaware of any concerns in relation to noise generated by the train rides on site. No complaints have been received while the trains have been in operation. The applicant needs to be aware that noise generated beyond the property can quickly become a nuisance to adjoining property owners who may not yet even live in the area. It is the applicant’s responsibility to prevent noise from the use of the trains impeding on other neighbors enjoyment of their property.

Beyond the required site improvements staff is also trying to reconcile this use and how it fits within an agricultural residential zone. Clearly educational uses are permitted with the granting of a conditional use permit. The applicant is very knowledgeable about trains, which is evident from the submitted narrative. There is not a clearly defined education program associated with this use. The primary function for the public to come to the site is to ride the train which is also an amusement type of attraction. As the applicant states in the narrative most of the similarly operated train rides are located in public parks in cities. The train ride certainly fits within the character of the region especially with the operation of the Grand Canyon Railroad. The question is if this is the right location for this use or if it would be better utilized by the public if it was in a more accessible setting such as within the city limits of Williams. The current operation is fairly low-key with train rides occurring only on Saturday and Sunday between noon and five. This is a big commitment for the applicant who will never have a free weekend since he is the only one who runs the trains. As demand increases for this attraction it may no longer be appropriate in this rural setting.

The last issue that staff struggles with on this case is the applicant’s resistance to work with the County. It is very clear through communication with the applicant that they want to have the train rides without making any improvements to the site for public accommodation which is not possible. The applicant has also been operating this use in violation for several months and has been told by staff to cease the operation until an approval is obtained. The applicant states that in his meeting with Supervisor Ryan and Community Director Towler that he was told he could continue to operate as long as he was in the process of obtaining a conditional use permit. Staff does on occasion grant temporary approvals through a permit to allow a use to operate only after an application for a conditional use permit has been submitted. The applicant was sent a notice of violation in March and continued operating and was told again by staff in early May to stop operating yet continued. It is very difficult for staff to support a use which has clearly been operating in violation and with an applicant who is difficult to work with.

Citizen Participation Plan

The applicant held a meeting with surrounding property owners on Saturday, May 23, 2009 at 1:00 PM. Staff has asked the applicant for a copy of the letter that was mailed out in relation to this meeting which the applicant has not produced. Staff does not know where the meeting was held or what comments were received. A total of five names show on the sign in sheet attached to three handwritten letters of support. The applicant has also submitted petitions with several hundred signatures in support of the railroad. Additionally, the applicant has submitted all of the comments attached to the on-line Williams Newspaper articles about this use. The applicant also included staff’s email address on his website for people to send in comments. Staff has heard nothing from the public directly either for or against this case.

Findings of Fact

The Planning and Zoning Commission must make the following findings of fact in order to approve a conditional use permit (the required findings are in italics).

1. That the proposed location of the conditional use is in accord with the objectives of this Ordinance and the purpose of the zone in which the site is located.

The site is located in the General Zone, which is “…intended to reserve areas of the County for light agricultural pursuits in conjunction with very low density residential uses and thereby to encourage and promote rural living and to provide space for people, minimize traffic congestion and preserve the existing rural environment of the County” per Section 9.0, “Purposes.” It could be argued that the proposed use which is advertised as a tourist attraction would be more appropriate in a commercial zone, which is “…intended to protect residential properties from noise, odor, smoke, unsightliness, and other objectionable influences incidental to commercial uses (Sec. 11.0).” The current operation appears to be supported by the surrounding property owners. However, the current operation is very limited in scale. If the use were to continue to grow as reflected by the ridership counts provided by the applicant how will the neighbors feel when there are a hundred people a day within a five hour stretch visiting the site every Friday, Saturday and Sunday. How will this affect all of the people traveling on Hoctor Road and at what point have the neighbors lost the rural character of the area.

2. That the proposed location of the conditional use and the conditions under which it would be operated or maintained will not be detrimental to the public health, safety, or welfare, or materially injurious to properties or improvements in the vicinity.

A tourist attraction may arguably be detrimental to public health, safety and welfare if it is located in a remote area with limited services or emergency response units. The current operation is as stated above relatively minor and at this time and does not appear to be in conflict with the surrounding neighborhood. The visual impacts of the use are very limited and as long as the applicant controls the noise generated by the use other properties in the vicinity should not be affected.

3. That the proposed conditional use will comply with each of the applicable provisions of this Ordinance, except for approved variances.

A paving waiver would need to be granted for the existing parking area.

4. That the proposed conditional use is consistent with and conforms to the goals, objectives and policies of the General Plan or Specific Plan for the area.

The subject property falls within the boundaries of the Red Lake Area Plan which was written in conjunction with a group of property owners in the area. The plan is relatively silent on commercial uses within residential zoning districts except for one policy which states “the review of Conditional Use Permits for commercial or other non-residential uses in residential zones shall consider the impacts of the proposed use on area residents, particularly, noise, dust, and visual impacts.”

RECOMMENDATION

Staff can support a limited version of the proposed use at this location but is not comfortable that the use can operate in compliance with required conditions. If the Commission can make the required findings to support approval, then staff recommends that approval be subject to the following conditions.

1. The conditional use shall be established and operated in accord with the approved site plan except that no tracks shall cross the public driveways or parking areas. Any substantial modification or expansion shall require further review by the Planning and Zoning Commission through submittal of a new use permit application.

2. Prior to establishment of the use and/or opening to the public, a special inspection shall be completed by the building department at the property owners expense and all outstanding building code issues shall be addressed as required. A Certificate of Occupancy shall be obtained prior to opening to the public.

3. Prior to opening to the public, all applicable permits and approvals shall be obtained from the County Environmental Services Division, i.e. wastewater system approval, etc.

4. A paving waiver is approved for the required parking area which shall provide parking for a minimum of 15 cars. One ADA accessible parking space shall be installed per the requirements of the building department. Compacted ABC shall be used in the future as the surface needs resurfacing. The parking spaces shall be delineated according to Section 15 of the Zoning Ordinance. The use of railroad tie bumper stops is acceptable.

5. A landscape plan shall be submitted in accordance with Section 18 of the Zoning Ordinance. Only the frontage along Hoctor Road and the paring lot shall be landscaped.

6. There shall be no signage associated with this uses other than minor directional signage used on site. No temporary signage or other advertising devices shall be permitted.

7. All outdoor lighting shall be downward-directed, fully shielded fixtures and otherwise subject to the provisions of Section 17. A lighting permit is required prior to installation or replacement of any outdoor fixtures.

8. Hours of operation are limited to Saturday and Sunday only noon to 5 pm. There shall be no outside employees or volunteers.

9. Restrooms shall be provided for the public in accordance with the requirements as stipulated by the building department including one men’s and women’s restroom. Chemical toilets are acceptable with the approval of the County Health Department.

10. This use permit shall be valid for an initial time period of two years, and subject to application for renewal on July 28, 2009. Compliance with the conditions of approval will be strongly considered in any future request for renewal, and renewal may be subject to the modification of existing conditions and/or the addition of new conditions as necessary to preserve the public health, safety and welfare, and to mitigate any impacts on the surrounding neighborhood.

11. Noncompliance with any of the approved conditions of approval will be grounds for suspension of the use permit, and referral back to the Planning and Zoning Commission for consideration of revocation of the use permit.

Respectfully submitted,

William L. Towler, FAICP, Director Prepared by Tiffany Antol, AICP, Senior Planner

A Man and a Train, Marty Robbins