Tuesday, September 15, 2015

City Council 1-Sep-2015: Public Works Heroes, Blackstone, Highland Oaks, Highland Blvd-11800 N Intersection

2015-09-01 PW Employee AwardsThe council chambers were full again (~100 residents). The Blackstone and Highland Oaks project brought the most attendees. A few very dedicated residents stayed until after midnight to hear the Operational Safety Report regarding the Highland Blvd / 11800 N intersection. The meeting adjourned around 1 AM. What  I was impressed with is that despite the duration of the meeting, the emotions around some of the issues, and the opposing viewpoints held by council members and residents, by and large we were all able to disagree without being disagreeable.

Public Comment

  • Rhonda Bromley (Lone Peak HS Principal): LP has a 95.3% graduation rate, Top 5 in science & math testing. Hope Squad started, full time social counselor has been hired.

  • Alison Gegan: Comment relative to proposed new LDS church. Parking on both side of the street leading up to the church will be an issue. If parking is allowed on the west side of the road then their trailer cannot be pulled out of their driveway

  • David Beck: Opposes high density (3 story housing). Wants town center to be a pleasant place to come.

  • Lydia Johnson: Oppose Blackstone … parking issue.

  • Mark Whitney: Oppose Blackstone … the threat of a lawsuit should not impact the decision.

  • Kathy Mead: Oppose Blackstone … doesn’t conform to general plan vision statement nor meet town center objectives

  • Brett Johnson: Oppose Blackstone … Mental health reasons

  • Stan Mead: Oppose Blackstone … believes that that concerns of the residents constitutes credible substantive evidence of detrimental impacts

  • Dennis Skyes: Oppose Blackstone … Ridley’s back alley

  • Joe Gavia: Concerned about proposed salt storage facility. Will material other than salt be stored in the building. Children’s safety.


  1. Highland Fling Chairs – Awards presented by Mayor Mark Thompson and Jessie Schoenfeld.

    2015-09-01 Fling Awards

  2. Public Works. Park Department – Fire Chief Freeman and Justin Parduhn.
    Awards were given to the public works employees, Tayson Arnoldsen, Benji Smith, and Sam Orton, whose quick action prevented garage fire from burning down a house. Click on the first picture below  to see article in the Herald.

    2015-09-01 PW Employee Awards

    2015-09-01 PW Awards
  3. Changes in Drug Enforcement – Police Chief Gwilliam and Tim Merrill.
    The bottom line is that the reduction of some drug offenses by the legislature during the last session from a felony to a misdemeanor will result in an increase in our local court costs.
  4. Open Meeting Law (deferred to next council meeting)


  1. MOTION: Approval of Meeting Minutes for City Council Regular Session – May 5, 2015. Approved unanimously

  2. MOTION: Approval of Meeting Minutes for City Council Regular Session – June 16, 2015. Approved unanimously

  3. MOTION: Approval of Meeting Minutes for City Council Regular Session – July 21, 2015. Approved unanimously

  4. MOTION: Approval of Meeting Minutes for City Council Regular Session – August 4, 2015. Approved unanimously

Public Comment

  1. Urban Deer Control Program – Requirement of DWR. See council agenda pages 42-47.

    There was not public comment. Note, if we continue the program in maintenance mode we will operate under the original rules. If we do not continue and restart the program in a future year then we would be subject to new rules which would result in a costlier program. Council asked that a motion to participate be included in the next council meeting.

Public Hearing

  1. Highland Oaks – Annexation and Approval of Ordinance.
    A number residents commented. 3 were in favor and spoke highly of the developer (almost seemed like a testimonial to him).  The builder, Highland Custom Homes mentioned that his perception of current demand was that the R-1-20 lots experiencing significantly higher demand than R-1-40 lots (over10x). The land owner spoke in favor as well. One resident was opposed, another said R-1-20 was OK but R-1-40 was better. A Skye Estates condo owner was concerned about any development.


  1. ORDINANCE: Annexation of 35.50 Acres located at the Northeast corner of Highland Blvd and 11800 North - Highland Oaks Annexation See council agenda pages 48-53.

    The council discussed item 12 first and included this in the final motion on item 12.

  2. ORDINANCE: Establishing the Zoning of recently Annexed Property - Highland Oaks. See council agenda pages 54-76

    Staff also shared the following two maps which show the current zoning in Highland and the remaining undeveloped land.

    2015-09-01 Highland City Zoning Map

    2015-09-01 Undeveloped Land

    If the council were to allow all existing undeveloped land to be rezoned from R-1-40 to R-1-20 it could result in about 1,100 additional lots, which could strain city resources. Subsequent discussion centered around the rationale for having this be an R11-20 zone (20,000 sq. ft. average lot size) vs. R-1-40 (40,000 sq. ft. average lot size). The rationale for this parcel taking the R-1-20 approach would be that there is a higher density area to the North and to the west Lehi’s current plan calls for an average of 20,000 sq. ft. per lot (this could be the equivalent of our R-1-20 or be an open space development with small lots and parks). The developer shared his concept plan with the council which included the formation of an HOA which would maintain the parkway detail along Highland Blvd and 11800.

    2015-09-01 Highland Oaks Concept Plan

    After a discussion the council approved (4 to 1 – Dennis Lebaron cast the opposing vote) annexing the property with an R-1-20 zone with the following conditions recommended by the planning commission:

    1. The maximum number of lots shall not exceed sixty-one.

    2. A portion of Lot 8 will be dedicated to the city for the purpose of continuing the trail to connect the streets.

    3. Include a minimum 30-foot rear lot line setback for Lots 13-32 for purposes of existing drainage, or for the lots to the south where the drainage must be relocated, and accept the offer to maintain existing shrubbery and plant life in the sensitive lands, and that the relocation would be sensitive to not disturb any more scrub oak than is necessary for the construction of the flow line in order to retain the natural beauty of the area.

    Additionally the council stipulated that if the developer deviated from his plan by more than 5% the annexation and zoning would be voided.

    I could easily have voted for an R-1-40 zone in which case annexation application would have been withdrawn and the project killed. In fact that was where I was at going in to the meeting. Here are some of the items that influenced my thinking:

    1. The development will be 61 units as opposed to the theoretical 77 that an R-1-20 zone would allow

    2. The development will pay for parkway detail maintenance via an HOA.

    3. The development will be bordered by a higher density area to the north and a similar or higher density area to the west. I believe the rationale to make this an R-1-20 zone is not one that can be readily be applied to other parts of the town, even the undeveloped land to the southeast.

    You may be interested in the poll at the end of the post on whether a R-1-30 zone should be created.
  3. MOTION: Conditional Use Permit for an 86 Unit Multi-Family Townhome Development in the Town Center Flex Use Zoning District – Blackstone. See council agenda pages 77-292.

    2015-09-01 Blackstone Architectural Rendering

    2015-09-15 Blackstone Revised Site Plan

    This has been a contentious item for several months. The quick version of the discussion is that we continued this to the next meeting so that we could review material from the developer which was received by staff a couple of hours prior to the meeting.

    The longer version is that we had a long discussion with the developer regarding the fact that the intended mixed use (business on the first floor residential on the upper floors) is not working at Toscana. Brian Braithwaite wanted to know what the developer was going to do to ensure that this was not the case at Blackstone. The developer responded that there is a basement area in every unit that could be used as storage for a business and the units themselves are bigger than Toscana but the code only required that the 1st floor must be able to be used as a business not that it shall. Parking came up as an issue as well in that it was deemed that there was not sufficient parking to accommodate business activities. The developer said that we conform to the parking requirement in the development code.

    I believe the a question in play was whether goals or objectives found in the General Plan or the Town Center Overlay trump allowed uses in the development code (e.g. town homes). The simple answer is no. While the development is supposed to be informed by the goals and objectives, the specifics in the development code have precedence (unless there are specific numbers on the goals and objectives limit use).

    The guidance to provided to Utah Residents and Governing Bodies by Craig Call, J.D. Property Rights Ombudsman in his 2005 publication “A Utah Citizen’s Guide to Land Use Regulation: How It Works and How to Work It”  is insightful on this issue. In the section on conditional use permits (begin on page 82) he states the following:

    “Conditional uses are often used, but not often understood. There is a tendency by citizen planners, once a matter of some discretion is before them, to attempt to act as if they had legislative discretion and, therefore, can impose any decision they consider desirable. The significant case of Davis County v. Clearfield City indicates otherwise, however. This battle was typical of the type of war that goes on when someone proposes to build group homes for the treatment of those with special challenges near a neighborhood or school. …

    If you are among the citizen planners involved, don’t deny an application unless you have evidence to support your denial. With a conditional use permit application, the question you are addressing is not “Why?”— it’s “Why Not”? If you don’t have evidence to deny and there are conditions which can be imposed to mitigate the negatives in the proposed, you must approve.”

    My take on this issue is that with regard to conditional use permits the council’s role is to ensure that the developer’s project adheres to code and to investigate possible detrimental impacts and work with the developer to mitigate them. If they cannot be mitigated with reasonable conditions then the permit can be denied. This is therefore an administrative process where objective information plays a pre-eminent role.

    The following is an excerpt from the Utah State Supreme Court decision in the case of  Krejci v. City of Saratoga Springs (paragraphs 34 & 35)

    “34 The analogy between rezoning, on one hand, and variances and conditional use permits, on the other, breaks down on further scrutiny. Variances and conditional use permits are fundamentally administrative acts because they involve application of existing law to the facts presented by an individual applicant. And the decision on variances and conditional use permits is limited to the evaluation of specific criteria fixed by law. A rezoning decision, by contrast, is open-ended. No fixed criteria are required to be met as a prerequisite for a rezone. Any and all considerations are on the table, such that rezoning decisions are made by “consider[ing] the wide range of policy considerations of relevance to all who fall within the scope of a particular law.” Id. ¶ 38.

    35 A “conditional-use” or “special-use” permit is an “authorization to use property in a way that is identified as a special exception in a zoning ordinance.” BLACK‟S LAW DICTIONARY 1527 (9th ed.). “Unlike a variance, which is an authorized violation of a zoning ordinance, a special-use permit is a permitted exception.” Id.; see also UTAH CODE § 10-9a-507(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.”). So in the conditional use context, the exception to zoning requirements is anticipated in the zoning ordinance itself, with the ordinance setting forth conditions that must be met in order for a property owner to qualify for an exception. Thus, if an applicant meets the standards in the ordinance, the permit “shall” be approved. Id. § 10-9a-507(2). So when a conditional use permit is approved, no new law is created. Instead, existing law has been applied to the particular facts presented by the applicant. That is the essence of administrative—not legislative—action.”

    My sense of the residents who oppose Blackstone is that for them the only viable outcome for the council is to deny the project; not mitigate any detrimental impacts because they see the town homes themselves as a detrimental impact.  This is unfortunate because rather than working with the developer to help make the project as good as possible for the city via reasonable conditions, a divide has been created, ill will is being fostered, and time and effort is spent in areas that add little value by all sides.

    The town homes are a specifically allowed use, the project meets code and the developer has worked to mitigate (not necessarily eliminate) concerns expressed by the council, planning commission and residents. Two traffic reports have also found that there are no “detrimental” impacts that cannot be mitigated which would preclude the project from moving forward. Absent some other detrimental impact that is substantially documented I will vote to approve the project because I believe this is what the law requires.

    Below is an extract from one of my responses to the many emails the council has received on this matter.

    The state property rights ombudsman site does offer 16 advisory opinions relative to conditional use permits. I have read the summary of each and the details on most. I reviewed these in my blog post covering the July 21st Council Meeting (if you haven't read this I would recommend it). You and others have provided a lot of input since the July 21st meeting. The council and/or council members have also sought the opinions of at least 4 attorneys (including our own) on this issue. There are council members who strongly oppose the project but in the end could vote to approve it if they come to the conclusion, based on research and a lot of discussion, that there is no sound legal basis for denying the conditional use permit.

    A Utah Citizens Guide to Land Use Regulation contains the following quote from the chapter entitled "In the Beginning”: Adopting the General Plan and Land Use Ordinances" which was in an earlier letter you sent to the city council:

    “The entire concept of local land use planning was intended to move from general to specific and make lot-by-lot decisions in light of the general community goals. Land use decisions that avoid this context are more likely to fail if challenged and more likely to breed cynicism in those most affected.” (page 43)

    I agree with the statement as it relates to passing land use regulations (we can certainly see the impact now). However, it does necessarily apply to the process of approving a specific conditional use permit based on enacted land use ordinances. The chapter entitled "Specific Administrative Issues and How They are Resolved" contains the following information regarding the processing of conditional use permits (pages 82-87):

    Other uses are designated as “conditional” uses, which in state statute are defined as being subject to special case-by-case scrutiny. The conditional use may be allowed, allowed with conditions, or in narrow circumstances, denied. Conditional uses must be approved if reasonable conditions are proposed, or can be imposed, to mitigate the potential negatives involved. Conditions must relate to applicable standards in the ordinance adopted by the local city or county to regulate conditional uses. They may not be denied unless it is shown that “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. ...

    What are the issues?

    1. Is the proposed use acceptable in the proposed location and under the proposed method of operation?

    2. The presumption is that the use should be allowed since the ordinance would not provide for a use if the use were not deemed desirable in the first place.

    3. If the use can be conditioned to be compatible with adjoining uses, then it should be so conditioned and approved. If it cannot, then the conditional use should be denied.

    4. The decision-maker must enter upon the record substantial evidence to support its decision.

    5. The major issue is the conditions, so the central issue is: what conditions would be appropriate and what conditions might not? For a more thorough discussion, see “Imposing Exactions and Conditions in Development” in Chapter 7.

    How is the decision appealed?

    Under statute, the local council or county commission can appoint itself or some other body to hear appeals involving conditional use permits.

    Tip for participants

    Conditional uses are often used, but not often understood. There is a tendency by citizen planners, once a matter of some discretion is before them, to attempt to act as if they had legislative discretion and, therefore, can impose any decision they consider desirable.

    The significant case of Davis County v. Clearfield City indicates otherwise, however. This battle was typical of the type of war that goes on when someone proposes to build group homes for the treatment of those with special challenges near a neighborhood or school. ...

    What do we know about the basis for considering a conditional use permit? We know three things:

    1. If you are an applicant and you want your application for a conditional use permit to be approved, come prepared with factual evidence supporting the application. Be prepared to respond to the evidence you anticipate that those against the idea will use to oppose it.

    2. If you want a conditional use application denied or conditioned, clamor all you wish, but while you are clamoring, provide some substantial evidence that can be placed on the record to justify your opposition. The citizen planners cannot legally support your position if you don’t do your homework and give them the evidence they need to support a vote in your favor.

    3. If you are among the citizen planners involved, don’t deny an application unless you have evidence to support your denial. With a conditional use permit application, the question you are addressing is not “Why?”— it’s “Why Not”? If you don’t have evidence to deny and there are conditions which can be imposed to mitigate the negatives in the proposed, you must approve.

    Remember that substantial evidence is “more than a mere ‘scintilla’ of evidence though something less than the weight of the evidence.” The decision-maker need not have all the evidence in support of its decision, or even the majority of evidence, but simply some good, solid, credible evidence.”

    Note, I would read the entire section on Conditional Use Permits from A Utah Citizens Guide to Land Use Regulation not just the above excerpts
  4. MOTION: Conditional Use Permit for a 19,422 Square Foot Church – 9681 North 6900 West See council agenda pages 293-304

    Neighbors to the site expressed concern regarding parking on the street and their ability to exit their property with a large trailer they own. The permit was approved and the city agreed to paint the curb in front of their home red and for the time being restrict parking on the east side of the access road. The vote was unanimous.

    2015-09-01 LDS Church 9681 N 6900 W
  5. MOTION: Preliminary Plat Approval for an 11 lot subdivision located at 5650W. 9600 No. - Flats at Fox Hollow See council agenda pages 305-309

    There was little discussion on this as it is viewed as beneficial to the community. As a result of the project curb and gutter will be installed on the north side of the 9600. The city will only need to pay for the section in front of one existing home. Unanimously approved.
  6. MOTION: Conditional Use Permit Salt Storage Building – Northwest corner of Park Drive and SR92 See council agenda pages 310-316

    We discussed soliciting additional input from residents regarding child safety issues and move to have staff do that and continue the item to the next meeting.

    2015-09-01 Salt Storage Facility 
  7. MOTION: Operational Safety Report – 11800 North and Highland Blvd. See council agenda pages 317-365.

    The city hired two firms (PEC and InterPlan) to complete an operation safety report (OSR) for the intersection at Highland Blvd and 11800 N representatives from both firms were there to answer questions. A summary of their recommendations were as follows:

    2015-09-01 Highland Blvd 11800 N overhead

    2015-09-01 Highland Blvd 11800 N ground

    PEC Summary

    Analyzing the historical crash data (2009 to 2015) indicates that four of the 12 crashes (33%) that occurred at the intersection involved a westbound left‐turn vehicle (including two severe crashes) which represents a crash pattern that is a safety issue.

    PEC Recommendations

    1) Increase the size of the existing 30‐inch stop sign to 36 inches and add flashing light emitting diode (LED) units within the border of the stop sign.

    2) Restripe the northbound Highland Boulevard approach to provide a through lane and a right turn lane.

    3)  Replace the painted stop line with thermoplastic for better visibility and longevity.

    4) Install side road warning signs on Highland Boulevard for both the northbound and southbound approaches.

    5) Install a two‐direction large arrow warning sign on the far side of the T‐intersection in line with

    6) 11800 North to bring the intersection into compliance with MUTCD standards for T-intersections.

    7) Re‐stripe existing double yellow striping on 11800 North.

    8) Install the pavement message marking STOP prior to the stop line.

    9) Remove the trees from the center median in the south leg of the intersection and replace with shrubs or bushes less than 2‐feet tall.

    10) Install a stop ahead warning sign on 11800 North.

    11) Consider rebuilding the intersection as a roundabout.

    InterPlan Summary

    The crash history for this intersection does not suggest a major concern when compared to other Highland City intersections with similar function and size. Likewise the trend does not suggest a sudden increase or decrease in crash frequency over time. Several of the crashes at the intersection have extenuating circumstances, such as vehicle brake problems, driver inattention, or the presence of wildlife. However, the most common crash type - a northbound vehicle on Highland Boulevard striking a left-turning vehicle from 11800 North - occurred three times in seven years, not including the recent fatality.

    InterPlan Recommendations

    1) Consider installing a pedestrian facility opposite the southeast corner pedestrian ramp or consider removing the pedestrian ramp altogether. Visually impaired people could mistakenly assume a crosswalk and pedestrian facilities continue across the street due to the existing
    pedestrian ramp when in fact no such facilities exist. The benefit of such treatments should be considered in the context of future development and the demand for pedestrian treatments.

    2) Consider adding paved shoulders or restriping lanes to create shoulders on Highland Boulevard north of 11800 North to accommodate bicycle traffic. This action would require coordination with other agencies since Highland Boulevard north of 11800 North is outside Highland City boundaries.

    3) Consider alterations to median landscaping south of the intersection to improve driver visibility.

    4) Consider restriping northbound Highland Boulevard to feature one through lane and one right turn lane at 11800 North. This action would not eliminate concerns about visibility of trailing vehicles being blocked by right-turning vehicles on Highland Boulevard, but could help clarify to drivers on 11800 North which movements vehicles on Highland Boulevard are conducting. The effects of eliminating the shoulder through restriping need to be considered in tandem with any potential bicycle treatments, as discussed above.

    After discussing the reports and hearing from residents, who stayed till after midnight. The council passed two motions unanimously.

    1) Authorize staff to conduct a traffic light warrant study on the intersection
    2) Put a radar speed sign on the north bound lane (the county owns the road north of the intersection) and have engineering review the recommendations from both firms and bring to the council their recommendation for which ones to implement.

  8. MOTION: Increase Budgeted Expense in Major Road Maintenance Fund – Unused portion of the B&C Road Funds from Fiscal Year 2015 See council agenda pages 366-367.

    The city was unable to spend $170,492.07 of last year’s allocated road budget because work could not be contracted and completed by June 30th. The council approved a motion to transfer these funds into this year’s budget.


Note, while the following items were on the agenda we adjourned prior to discussing them as it was about 1 am.

  • Everbridge Communications – Nathan Crane / E.D. Barfuss
  • Saved Water Shares – Mayor Thompson



Requested by / Owner

Due Date


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

City Council


Continued discussion
Determine Park Use for Recreation

City Council
Parks Staff

4th Qtr. 2015

Staff to make recommendations
Building Use Policy - Fees


3rd Qtr. 2015

Staff gathering information

HW Bldg. – PW Storage Status

City Council

End of 2015

In progress

SR74 Median at Pebble Lane Subdivision



Removal of median
Moratorium for the Town Center Overlay

City Council

Jan 2016


Historical Society request for storage room and display area in Community Center

City Council

End of 2015



Should the city create an R-1-30 (average lot size 30,000 sq. ft.) zone for residential development?



Thanks for taking the time to share your thoughts regarding this post.