Wednesday, July 29, 2015

City Council 21-Jul-2015: Blackstone townhome project, Dry Creek Phase 3 trail, maintenance of parks …

2015 Highland_LogoThe council chambers were full, primarily with residents opposed to the Blackstone project. The discussion was very civil and respectful across the board. THANK YOU! A couple of scout groups were also present. Please note, because of the intense public interest in the Blackstone project my summary of this item (#5) is quite lengthy and includes lots of references.


  • Public Comment: Kathy Mead asked the council to pass a moratorium on town center development to give the city a chance to review and revise the existing zoning regulations. She was informed that the council cannot take any action unless the item is listed in the agenda as an action item. Note, I believe this is a good thing as it ensures that the public has an opportunity to get involved on any action prior to a vote (assuming they review agendas prior to meetings).


  1. Utah Local Governments Trust – Brent Oakeson: Brent presented the city with an award from the insurance firm for being proactive in mitigating insurance risks.

  2. Utah Lake Commission – Eric Ellis: Although this was on the agenda Eric did not attend the meeting.


  1. MOTION: Approval of Meeting Minutes for City Council Regular Session – June 2, 2015 Approved Unanimously.
  2. MOTION: Ratifying the Mayor’s Appointment to the Highland City History Committee – Kellie Johnson. Approved Unanimously.


  1. MOTION: Conditional Use Permit for a 86 unit Multi-Family Townhome Development in the Town Center Flex Use Zoning District – Blackstone. After presentations by Nathan Crane (city planner & interim city administrator), Blackstone representatives, and  comments from several residents the council voted unanimously to continue the issue until August 18th to give the developer time to respond to questions and comments as well as to give staff the time to have a formal road study performed. Refer to pages 6-23 of the staff presentation, pages 12-43 on the Council Agenda, Highland City Development Code, pages 98-128 (last revised 2010). Note, the current zoning which allows and mandates 3 story town homes in some instances.

    In deciding whether or not to approve the project the council must follow the Utah State code statute listed below:

    State Code 10-9a-507 Conditional uses.
    (1) A land use ordinance may include conditional uses and provisions for conditional uses that require compliance with standards set forth in an applicable ordinance.

    (2) (a) A conditional use shall be approved if reasonable conditions are proposed, or can be imposed, to mitigate the reasonably anticipated detrimental effects of the proposed use in accordance with applicable standards.

    (b) If the reasonably anticipated detrimental effects of a proposed conditional use cannot be substantially mitigated by the proposal or the imposition of reasonable conditions to achieve compliance with applicable standards, the conditional use may be denied.

    The council should also be guided by following summary of advisory opinions from the State Property Rights Ombudsman.

    If a use is allowed as a conditional use it is assumed that the use is desirable but that it may require an extra level of review. Denial must be based on some factor unique to the proposed location that renders the potential negative effects of the proposed use beyond mitigation. Mitigation means to temper or reduce the negative aspects, not eliminate them.

    The action taken in response to an application must be supported by substantial evidence in the record. Substantial evidence is evidence that is relevant and credible. To be relevant, it must relate to the standards in the ordinance. To be credible it must be objective and independent.

    After reviewing a lot of information from the state property rights ombudsman site, Utah State Code, and Highland Ordinances my conclusions are that:

    1) Any specific use identified in Highland’s zoning ordinances is presumed to be desirable;

    2) In order to deny a conditional use permit for a project that complies with city code the city council must have substantial information on the record validating that the use will have a detrimental impact on the city; and

    3) proof that any specific detrimental impact cannot be mitigated with reasonable conditions.

    The Planning Commission held two public hearings on this item on June 30, 2015 and July 14, 2015. At the July 14, 2105 meeting, the Commission voted 5-0 to recommend denial of the project for the following reasons:

    • It does not meet the goals, objectives and standards of Highland City
    • It does not meet the purposes set forth for the area around the Town Center as set forth in the Highland City Development Code in Section 3-4701
      The following provisions fill the City Objectives to promote the public health, safety, and general welfare of present and future Highland residents:
      (1) To provide a central area where commercial, retail and residential could be blended in an attractive walkable, open space environment.
      (2) To provide higher density development with well planned open space public gathering areas.
      (3) To provide Commercial, retail and civic opportunities of a wide variety which meet the basic needs of the Highland area and its residents.
      (4) To promote clarity, flexibility and cooperation in long term planning, working for the success and future of the Town Center.
    • It has access problems particularly in the northern area
    • It has negative impact on the southern property which will become landlocked
    • It does not promote a functional relationship within the development and within the surrounding areas particularly as it relates to open space functionality as it relates to its similarities to Toscana and the negative functional relationship that has been developed there
    • It impacts the safety of the area in that the sidewalks are not functional and leading to the open spaces
    • The open spaces are inconvenient
    • Guest parking is sporadic
    • There is no traffic impact study
    • The entrance, exit and parking locations for service vehicles and signage for those service vehicles is currently undefined and appears to be unacceptable

    I have a self-imposed rule to not override a Planning Commission recommendation.  but after reviewing their recommendation and the minutes from the meeting (I attended the first) I did not find substantial evidence on record that supported a negative recommendation. I will base my Aug 18th decision on the explicit standards required by the state and our code.

    The council asked the developer to resolve a number of items prior to the Aug 18th meeting. These include: (1) potential land-locked issues with adjacent property, (2) ownership of an orphaned property between Blackstone and Ace hardware, and (3) location of parking (we believe that if guest parking is too far from residences it will create an incentive to park on city streets). Staff will also order a formal road study to fully understand the impact of the development on traffic flow and safety in the area.

    We have heard a lot about potential negative impacts of the development but I did ask staff to share with the council the positive impact of this development at our next meeting. Expected property tax revenue, reduction of our debt to the developer of the town center relative to infrastructure, contribution to continued park development due to impact fees … .

    Below are references to information pertinent to this issue from the Highland City Development Code, Utah State Code and the Property Rights Ombudsman..

    Highland Development Code
    Flex use:Flex use shall mean a property whose use may include Attached High Density Residential Uses, Live-work Uses, Office Uses, Retail Uses or any combination of all four (Highland Development Code, p. 99 item 4).

    Town Center Flex Use District.
    (i) Height. Height shall be measured from the foundation to the highest point of a building which may be the top of the cornice or roof ridge. Buildings within the Town Center Flex Use District shall be a maximum of fifty (50) feet in height as measured from the top of the curb on the closest adjacent public street.
    (ii) Upper floors. Upper floor uses shall not exceed two (2) stories for a total of three (3) stories. A. Above the ground floor, all buildings along Town Center Boulevard, Town Square Park East, 10700 North, Parkway East and Parkway West shall be setback horizontally a minimum of eight (8) feet from the lower fronting vertical wall.
    (iii) Balconies. Residential units above the ground floor along Town Center Boulevard, Town Square Park East, 10700 North, Parkway East and Parkway West shall be setback horizontally a minimum of eight (8) feet from the lower fronting vertical wall. A. The area above the ground floor within the setback shall be designed and engineered to be a functional balcony, courtyard, garden, outdoor patio, outdoor seating area, or similar that promotes private use and public interaction.
    (iv) Location. A significant majority of all building fronts and front doors within the Town Center Flex Use District shall be a maximum of ten (10) feet from an existing/planned right-of-way (not driveway or parking area). A building may be located a maximum of 20 feet from a rear property line if a structure has already been constructed along its adjacent right-of-way first, guaranteeing massing and pedestrian activity along the planned right-of-ways within the Town Center. (Highland Development Code, p. 104)

    3-4716: Residential Uses.
    All Flex Use residential developments and Town Center Mixed Use Residential shall be required to provide additional site planning and architectural improvements and/or specifications as follows:
    (a) Roofs. The roofline of all proposed structures that include residential uses shall be varied in height to provide a break in the visual appearance.
    (b) Walls. The vertical wall plane along the upper floors shall be articulated, varied, and architecturally designed to promote numerous opportunities for views from residential units and provide places for outdoor balconies and spaces. (i) Balconies. A minimum of twenty-five 25% of all residential units located on an upper floor (first floor of residential), which faces a parking area or designated right-of-way, shall be designed with a functional and practical balcony that faces onto that parking area or designated right-of-way.
    (c) Windows. Only windows of high residential quality shall be used. Window details as defined within the Commercial Design Standards and 3-4713 of this ordinance shall be included. The window pane for all residential windows shall be recessed a minimum of three (3) inches from the exterior facing wall.
    (d) Access. Residential units shall be accessed from a separate entrance that is not located within the leased space of a retail or office unit.
    (e) Parking. A minimum of three (3) parking stalls per unit shall be provided. Underground parking or parking structures may be provided for residential units provided they are located on the interior block and not along a designated right-of-way. Underground parking may not be constructed if the result of the parking structure reduces any ground floor retail or commercial footprint to a point where it may be considered non-functional or impractical. (i) Underground parking areas or parking structures shall be a minimum of thirty (30) feet from the nearest right-of-way and be screened from that right-of-way by an attached building. (ii) Parking Structures shall include exterior landscaping features along each level of parking to screen light pollution and create an aesthetic feature that may assist with breaking the visual appearance of a large wall plane. (iii) Parking shall not be allowed on residential alleys. (iv) If parking is provided by an attached/detached garage a driveway shall be provided with a minimum depth of twenty-two feet (22’).
    (f) Yards. In all cases where residential is proposed as the exclusive use of the property (until such time that a ground floor may convert to retail/office), the project shall provide a rear yard for each unit typical with row house type building construction.
    (g) Ground Floor Residential Design. Residential development (Residential and Live-Work units) located adjacent to Parkway East, Parkway West, Town Center Boulevard/Drive, Town Square Street East, Town Square Street West, or Town Square Park Street that does not exclusively incorporate ground floor retail, other commercial, or office shall be designed with flexibility in such a way to provide for ground floor retail in the future.
    (h) Minimum Residential Height. Uses proposed as exclusively attached residential shall be a minimum of three (3) stories in height only if located adjacent to Parkway East, Parkway West, Town Center Boulevard/Drive, Town Square Street East, Town Square Street West, or Town Square Park Street for the purpose of providing for future use on the ground floor

    State Code 10-9a-103-5 Definition of Conditional Use
    (5) "Conditional use" means a land use that, because of its unique characteristics or potential impact on the municipality, surrounding neighbors, or adjacent land uses, may not be compatible in some areas or may be compatible only if certain conditions are required that mitigate or eliminate the detrimental impacts.

    Utah State Property Rights Ombudsman
    The Office of the Property Rights Ombudsman protects and preserves the property rights of the citizens of Utah.  The Office helps citizens and government agencies understand and comply with land use and property rights laws, resolves property rights disputes, and advocates for fairness and balance when private property rights conflict with public needs.

    Conditional Uses (simplified summary from Ombudsman website)

    What is a conditional use?
    A “Conditional Use” is a land use that has unique characteristics or negative effects that may not be compatible in an area without conditions to mitigate or eliminate the detrimental impacts.

    How are conditional uses designated and approved?
    A local government has authority to designate uses as conditional, but that designation must also refer to performance standards that guide decisions on what conditions may be applied. The designation must be in the local government’s land use ordinance.  A use may be listed as permitted in one zone or area, but be conditional in another zone or area.

    The local government also establishes the method to consider applications for a conditional use permit.  Consideration should focus on facts and applicable standards, and avoid “public clamor,” or emotional arguments for or against a permit.  An application may be denied only if the detrimental impacts cannot be mitigated by reasonable conditions.

    What are applicable standards?
    “Applicable Standards” refers to guidelines in an ordinance that help determine the type and extent of conditions that may be imposed on a conditional use.  These standards establish objective goals or levels of performance, which then guide decisions on the conditions which are adopted.

    What are detrimental impacts?
    Most land uses impact the public’s health, safety, or welfare in some way.  The detrimental effects identified for a conditional use should be related to negative impacts on legitimate governmental interests, or on the public welfare.

    How are conditions determined?
    Conditions may be imposed to mitigate, or lessen, the detrimental effects of the proposed use. The conditions must be reasonable, must address the identified effects, and must refer to the applicable standards already identified in the land use ordinance.  Put another way, if the detrimental effects are the problem, then conditions are the means to solve the problem.  Standards guide decisions on the nature and extent of the conditions, and the standards are also the means to measure success of the conditions.

    Advisory Opinions on Condition Use Permits (from the Ombudsman website)

    The following is a list of the summary opinions from the State Ombudsman on matters related to conditional use permits. In some cases I have quoted sections of the analysis and/or conclusion sections that seem to have bearing on this project.

    #4: A conditional use permit may only be denied if the municipality finds that the proposed use has detrimental effects that cannot be mitigated with reasonable conditions. Appeals from land use decisions must exhaust administrative remedies and follow procedures established by local ordinances and state law. A municipality’s decision is entitled to a great deal of deference, and will be sustained if it is supported by substantial evidence, and is not arbitrary, capricious, or illegal.

    #5: A conditional use permit shall be approved if conditions mitigate the detrimental effects of the proposed use. The burden is on the local government to show that the detrimental effects cannot be mitigated by reasonable conditions.

    #25: A conditional use shall be approved if reasonable conditions are proposed, or can be imposed, to mitigate the reasonable anticipated detrimental effects of the proposed use in accordance with applicable standards.” Standards for conditional uses must be set forth in ordinances, not established at the time of application.

    #34: According to Utah law, a conditional use permit may only be denied if it is shown that the detrimental effects of the use cannot be mitigated by imposing reasonable conditions.  A local government must first identify the possible detrimental effects of the use and then determine if those effects can be mitigated.  Administrative decisions are afforded judicial deference and will be upheld if they are supported by substantial evidence.

    #81: Any affected party may challenge an action to approve or deny a conditional use permit.  A person who can show that the proposed permit may lead to an actual or potential injury has standing to challenge the action. The land use authority is obligated to address detrimental impacts and, if warranted, impose reasonable mitigating conditions.  Failure to comply with notice and procedural requirements may void any approvals that have been given.

    #92: Since the City has deemed short-term rentals a conditional use within the zone, it has determined that short-term rentals are a desirable use, and the City must grant the use unless it can be shown that detrimental effects of the use cannot be mitigated.  The City’s determination that too many short-term rentals may constitute a detrimental impact is valid. …

    By state law and its own ordinances, the City must accept and process conditional use applications for short-term rentals. The City has validly limited short-term rentals in the residential zone because of the detrimental effect. However, the City must show by substantial evidence on the record that no reasonable conditions can be imposed to mitigate those harmful effects, before the City can deny the conditional use permit.

    #115: An ordinance should be interpreted to give effect to its intent, as evidenced by its plain language.  Discretion allowed to a local government to interpret and apply its own ordinances cannot extend to the point where the ordinance’s language is completely ignored.

    #124: A city must issue a conditional use permit (“CUP”) for an allowed conditional use when a project’s anticipated detrimental effects can be mitigated in accordance with standards set forth in the city’s ordinances.  A city’s decision to issue a CUP is proper unless it is arbitrary, capricious or illegal.  A decision to issue a CUP is not arbitrary and capricious if supported by substantial evidence in the record.  A decision to issue a CUP is not illegal if a city follows its ordinances and other applicable law.  In interpreting a zoning ordinance 1) a party must give effect to the plain meaning of the words, 2) a city’s interpretation of its own ordinance receives some level of non-binding deference, and 3) Utah law favors an interpretation allowing uses. …

    Utah courts have given some analysis of what constitutes substantial evidence and what does not.  In Springville Citizens v. Springville, 979 P.2d 332 (Utah 1999), the Utah Supreme Court analyzed whether substantial evidence supported a municipality’s decision to approve a P.U.D.  The court noted that the decision to approve the P.U.D. came after an extended time, multiple public meetings, documentation in support of the decision, and ultimately, multiple imposed conditions.  Springville Citizens, 979 P.2d at 337.  The court held that a reasonable mind could have reached the same conclusion as the municipality given the nature and extent of the evidence.  Id.

    By contrast, in Ralph L. Wadsworth Constr., Inc. v. West Jordan City, 999 P.2d 1240 (Utah Ct. App. 2000), the Utah Court of Appeals examined whether substantial evidence supported a city’s decision to deny a CUP.  The court held that substantial evidence did not support the City’s decision when the evidence in the record consisted primarily of adverse public comment.  Ralph L. Wadsworth Construction, Inc., 999 P.2d at 1243.

    #139: Conditional uses are important components of land use regulation. Land use authorities have discretion over granting conditional uses, but that discretion must be exercised within the limits placed by local ordinances and state statutes.  The Utah Code establishes four basic elements for a conditional use:  (1) Designation of a use as conditional; (2) adoption of standards to guide decision-making; (3) determination of detrimental impacts; and (4) consideration of conditions. All aspects of a conditional use analysis must be established by substantial evidence.

    Detrimental impacts must be particularized to the specific use and setting being evaluated.  Conditions must be tailored to those impacts.  A conditional use may only be denied if conditions were considered, but were found to be inadequate to mitigate the impacts. …

    The Planning Commission does not have discretion to decide that the home is too large for the HRL zone, because the maximum size has already been approved by the City.  When the 30 Sampson lot was created in 1995, the City determined that a 3,000 square foot home could be built.
    [20]  A few years later, the City agreed that the area of a basement level would not be counted against the total area of a home on that lot. Since the building size has already been approved, the Planning Commission cannot dictate the allowable size of a building simply because it feels that the “purpose” of the HRL zone is better served with smaller homes.

    #146: A local government has discretion to approve a conditional use permit if it determines that the detrimental impacts associated with the specific use have been mitigated by reasonable conditions. It is not necessary that all impacts be substantially mitigated to the satisfaction of all potentially aggrieved parties, only that the local jurisdiction is satisfied that they have been mitigated. …

    As is the case with all land use decisions, the conditions
    [to mitigate detrimental impacts] must be established by substantial evidence. The land use authority may consider not only the effectiveness of a proposed condition, but also the cost, convenience, and burden on the property owner (among other things) could also be factors in the analysis

  2. MOTION: Approval for the Reconstruction of the Dry Creek Phase 3 Trail. The council asked staff to revise the cost estimates to show the cost if city personnel did some of the work rather than contract everything. The two provided options were for a gravel trail ($47,185) and asphalt ($59,993). The reason the trail needs work is because it was originally built off of the trail easement and the property owners have requested that it be relocated to its designated location. Two residents commented on the trail. One of the property owners said that they don’t mind the trail as long as it is on its easement and the other resident indicated that an asphalt trail would be preferred because it would allow kids to ride their bikes to school. When I asked about the maintenance costs staff indicated that gravel would likely be less expensive on a long term basis but that asphalt would have little to no maintenance costs for the first few years – pages 44-48 on the Council Agenda.

  3. MOTION: .Approval and Authorize the Mayor to sign a contract for Transcription Services for City Council Meeting Minutes – C. Price Transcription LLC. The city is short-staffed at the moment due to employee illness and in order to have minutes produced on time there is a need to hire a transcriptionist. The council unanimously approved signing a contract that will reviewed at the end of the calendar year. Cost per year is estimated to be $6,600 – pages 49-52 on the Council Agenda and pages 25-27 of the staff presentation.

  4. RESOLUTION: Amendments to the Personnel Policy and Procedures Manual for Highland City Employees – Personnel Vacation Policy. Previously city employees could accrue unused vacation with no limit. The new policy will allow them to accrue up to 175% of their annual leave. The cap will be applied on their employment anniversary date at which time any leave in excess of 175% is lost pages 53-55 on the Council Agenda.

  5. RESOLUTION: Amending a Utility Connection Fee – Culinary Water Connection Fee. The current culinary water connection fee is $1,835 plus $360 for a water meter. Utah law stipulates that connection fees can only cover actual cost to the city. Following a fee study we had commissioned early this year it was determined that the cost to connect a 3/4’' meter was $536, $652 for a 1” meter pages 56-59 on the Council Agenda.

    The following is the calculation of the culinary water connection fee for a 3/4” and 1” displacement meters as well as a non-standard meter calculation. A non-standard calculation is used when a meter other than a ¾” or 1” is required.

    City Staff Commitment by Process




    Hourly Rate by Participant




    Admin/Account cost @ $35/hr
    Installation/Inspection cost @ $35/hr




    Total hours for city staff




    Cost for city staff

    $ 77.00

    $ 77.00

    $ 85.75

    General overhead (tools, equip., etc.)


    $ 15.00

    $ 15.00

    Cost of Meter

    $ 444.00

    $ 560.00


    Total Connection Fee

    $ 536.00

    $ 652.00

    $ 100.75+

  6. ORDINANCE: Adoption of an Engineering Design Criteria and Standard Drawings for Public Improvements. The most significant change is to have developers resurface all residential roads put in prior to the expiration of the road warranty.  This would add a cost of about $45.00 per lot to a development. The benefit to the city is that the roads we assume maintenance responsibility for will be good for 5 to 7 years pages 60-115 on the Council Agenda.


  • Park Maintenance Building – Josh Castleberry.
    Josh reviewed a report on the cost of doing lawn care in-house verses the cost of using contractors. There was a limited amount of information available but using the information at hand the estimated cost of in-house verses contracted was about $600,000 per year (includes a 40 year depreciation of a new building) versus $970,000. The gap was significant enough that the council was comfortable continuing doing it in-house. However, all options are on the table for storage including multiple buildings. Staff was not prepared to discuss next steps. See staff presentation on cost of lawn care.

  • Salt Storage Building – Justin Parduhn
    Council affirmed its approval to move forward on this project

  • Alpine School District Land Exchange – Nathan Crane
    Alpine school district proposed that we go with a reciprocating use agreement instead of a land swap for the land behind the high school and the land to the south east of Mountain Ridge Jr. High. Our preference is to work out a land swap – pages 34-35 in the staff report.

    Current City Property Adjacent to Lone Peak High School

    Current Alpine School District Property Adjacent to Heritage Park

  • Operational Safety Report Study – Nathan Crane
    Nathan mentioned that we are still a couple of weeks away from having a completed OSR for the 11800/Highland Blvd intersection.

  • City Website – Nathan Crane
    The prior administrator signed a 3-year agreement with a new website provider but we have not finished the transition. We did not cancel the agreement with our current provider. The annual renewal date is coming up with our current provider and we need to decide whether to continue with the current or transition to the new one.

Staff and Council Action Item List



Due Date


Road Capital Improvement Plan for FY 15-16. Prioritize and Communicate to Residents

City Council


Presentation made discussion to be continued including how to communicate to residents

Determine Park Use for Recreation

City Council
Parks Staff


Staff to make recommendations
Building Use Policy - Fees



In progress
HW Bldg. – PW Storage Status

City Council

End of 2015

In progress


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