City Council Minutes

Thursday, November 4,1999



ST. GEORGE CITY COUNCIL MINUTES REGULAR MEETING NOVEMBER 4, 1999, 4:00 P.M. CITY COUNCIL CHAMBERS PRESENT: Mayor Daniel McArthur Councilmember Sharon Isom Councilmember Rod Orton Councilmember Suzanne Allen Councilmember Bob Whatcott Councilmember Larry Gardner City Manager Gary Esplin City Attorney Jonathan Wright City Recorder Gay Cragun OPENING: Mayor McArthur welcomed all in attendance and congratulated Councilmembers Whatcott, Gardner and Orton on their re-election. The flag salute was led by Scout Nick Spilker, and the invocation was offered by Tom Lamb. Mayor McArthur invited Scouts from Troop 464 to introduce themselves. BID OPENING: Consider award of bid for capacitor banks for the Power Department. Purchasing Agent Sue Swensen presented two bids received: Winlectric $66,400; and CED dba Royal Utilities $43,370. A third bid from Western States was returned unopened as it was received three days after the bid deadline. She recommended award of the bid to the low bidder, CED dba Royal Utility, in the amount of $43,370. A motion was made by Councilmember Gardner to award the bid to CED dba Royal Utility in the amount of $47,370. The motion was seconded by Councilmember Isom, and all voted aye. BID OPENING: Consider selection of the firm to design the proposed skate park. Leisure Services Director Kent Perkins advised the City held numerous public meetings to receive public input and requested RFPs. Six were received at prices ranging from $28,800 to $56,347 to complete the entire project. All were interviewed by telephone, and staff recommends award of the bid to Wormhoudt Landscape Architecture in the amount of $28,800. Of that amount, $10,080 is for design and development. The architect will meet with the public three times, and investigate the site and soils. A fundraising effort will then begin, and then the project will again be presented to the Mayor and Council for approval to proceed. Mr. Wormhoudt builds skate parks all over the United States, and he submitted designs of a number of his other projects. Mr. Perkins advised the subcommittee was involved with selection of the firm and they requested the most experienced architect. Mr. Wormhoudt is very popular with the kids as he allows them to get involved in the design process. Designs will be presented to the Mayor and Council after Christmas. A motion was made by Councilmember Orton to award the bid to Wormhoudt Landscape Architecture in the amount of $28,800. The motion was seconded by Councilmember Whatcott, and all voted aye. ORDINANCE: Consider approval of an ordinance vacating a portion of roadway within the old sewer plant property south of Sunland Drive. City Manager Gary Esplin advised an environmental study had been completed on the property and as a result the City was required to haul away old sludge. The property is now ready to sell, but an old unused but City Council Minutes November 4, 1999 Page Two platted right-of-way through the property needed to be vacated. The purchaser of the property would like to close the sale on November 12. However, the portion of the old right-of-way that fronts the Saturn dealership will not be vacated until a waiver is received from them. This abandonment is only for the right-of-way through City property. A motion was made by Councilmember Gardner to approve by ordinance the abandonment as requested. The motion was seconded by Councilmember Allen. A roll call vote was taken, and all voted aye. ORDINANCE: Consider approval of an ordinance vacating a portion of the River Bend Estates ?A? Plat. City Attorney Jonathan Wright explained that a public hearing was held under the direction of Jim McGuire, as approved by the City Council, and a determination made that the public good would be served by vacating a portion of the Riverbend Estates Plat ?A?. The City Council must now approve an ordinance finalizing the vacation. A motion was made by Councilmember Whatcott to approve an ordinance vacating a portion of the Riverbend Estates ?A? plat. The motion was seconded by Councilmember Orton. A roll call vote was taken and all voted aye. CONDITIONAL USE PERMIT: Consider a request for approval of a conditional use permit for a used car lot in a C-2 zone on the corner 1470 South Hilton Drive. Larry Cox, applicant. Associate Planner Jim McGuire advised that the Planning Commission, at its meeting held October 26, 1999, recommended approval of the conversion of property to a used car lot in a C-2 zone on Hilton Drive subject to the recommendations of the City?s Traffic Engineer that the sight corridor be maintained on a perpetual basis through the trimming of obstructive vegetation and the removal of any and all encroachments within the sight corridor; that the applicant place a curb wall or some other physical feature that prohibits parking within the sight corridor as delineated on the certified site plan; and the removal of the existing driveway on Hilton Drive and the installation of low landscaping in the landscaped area. The applicant, Larry Cox, has agreed to all the conditions. A motion was made by Councilmember Gardner to approve the conditional use permit subject to the recommendations of the Planning Commission. The motion was seconded by Councilmember Orton, and all voted aye. PRELIMINARY PLAT: Associate Planner Jim McGuire advised that the Planning Commission, at its meeting held October 26, 1999, recommended approval on a 6-1 vote of the preliminary plat for Anasazi Ridge at Entrada with 42 units located in the south central portion of the Entrada PD. MPK Holdings is the applicant. The number of units conforms to the PD and the Commission felt that allowing the zero setbacks along some of the side yards did not constitute a significant change to the PD. The applicant wants the development to have fee simple lots at this time, but this plat may come back in its final form as a typical townhome development with common areas. A motion was made by Councilmember Isom to approve the preliminary plat as presented. The motion was seconded by Councilmember Gardner, and all voted aye. City Council Minutes November 4, 1999 Page Three REQUEST TO CLOSE STREET: Consider a request to close 300 East between 400 and 500 South on November 26, 1999. Church of Jesus Christ of Latter-Day Saints, applicant. City Manager Gary Esplin advised a request has been received from the LDS Church to close a portion of 300 East Street between 400 and 500 South on November 26 for the annual temple Christmas lighting ceremony. No problems have been experienced in the past. Tom Lamb, Chairman of the Lighting Committee, advised the LDS Church has a new policy discouraging use of the temple grounds for meetings or firesides, and thus the lighting ceremony needs to be moved into the street. The street would be needed from 1:00 p.m. to approximately 6:00 p.m. A motion was made Councilmember Gardner to approve closure of the street as requested. The motion was seconded by Councilmember Isom, and all voted aye. PRESENTATION FROM CENSUS BUREAU: Ms. Lucy O. Valerio from the Census Bureau gave a brief presentation on the purpose of the Census Bureau and the upcoming 2000 Census. She advised that census counters were needed and the wage is $8.25 an hour for part-time work. City Manager Gary Esplin advised that City employees Dave Evans and Lonnie Bowler have been assigned to work on census issues. CONCESSIONAIRE AGREEMENT: Consider approval of a concessionaire agreement with Gregory Schneiter at the St. George Golf Club. City Manager Gary Esplin explained the City has had a difficult time attracting concessionaires at golf courses, and is recommending approval of a contract with St. George Golf Club employee Greg Schneiter to run the concession stand at the St. George Golf Club. A motion was made by Councilmember Orton to approve the concession agreement with Gregory Schneiter as requested. The motion was seconded by Councilmember Whatcott, and all voted aye. APPROVAL OF BEER LICENSE: Consider a request for approval of a beer license for Gregory Schneiter for the St. George Golf Club snack bar. City Manager Gary Esplin advised a beer license is needed by Gregory Schneiter for the St. George Golf Club snack bar. A background check has been performed with no negative results. A motion was made by Councilmember Isom to approve issuance of the beer license as requested. The motion was seconded by Councilmember Orton, and all voted aye. LOCAL CONSENT FOR RESTAURANT LIQUOR LICENSE/CHANGE OF LOCATION: Consider a request for approval of local consent for a restaurant liquor license/change of location. Ronald James, applicant. Attorney Gary Kuhlmann advised his clients would like to transfer the local consent for a restaurant liquor license previously granted by the City Council from a location on Sunset Blvd. to a new location on Sunland Drive for the Sunset Beach restaurant. A motion was made by Councilmember Gardner to approve a change of location for the local consent previously given. The motion was seconded by Councilmember Isom, and all voted aye. Mr. Kuhlmann advised construction on the restaurant would begin within 60 days. City Council Minutes November 4, 1999 Page Four REQUEST FOR DELAYED PAYMENT OF IMPACT FEES FOR AFFORDABLE HOUSING PROJECT: Consider a request from Mr. David Adams for delay in payment of impact fees for an affordable housing project. Attorney Steve Snow, representing Mr. David Adams, distributed a summary memorandum. He advised that approval of Mr. Adams? request will help balance a lack of affordable housing within the City. He explained that Mr. Adams is ready to begin construction on a new affordable housing project called Riviera Palms, but is experiencing a timing problem and would like to apply for waivers available under the City?s year 2000 allotment since all allotments for 1999 have been given. He requested permission to be able to pull the building permits and pay all fees with the exception of the impact fees that might be waived for an affordable housing project, proceed through the application process, and whatever the result of that process, Mr. Adams would pay whatever is owed the City. He advised Mr. Adams will be requesting 35 waivers, and is asking for the opportunity to begin construction and make an application for the waivers. He cited a precedent set in 1998 for Red Cliffs Manor. He explained these fee waivers do not go to the developer, but are put back into the actual project to make the units nicer for the residents. Councilmember Isom commented that as a member of the Affordable Housing Committee, she contacted other members about their feelings concerning this request. It was their unanimous feeling that issuing the waivers now would destroy the plan as the availability of the waivers would not even be advertised until December, and not opened until January. She stated that while Mr. Adams builds good projects and there was no reason to think he would not be awarded the waivers, a line must be drawn as there might be many applicants seeking the waivers. She stated the Committee feels granting this request would be stepping around the intention of the program. Mr. Snow stated that in all probability no other affordable housing projects would be approved in 2000, as the process is very difficult and lengthy. He stated he knew of no one in the State of Utah planning on doing an affordable housing project in Southern Utah. He stated that if the City Council wanted to follow its General Plan, granting this request would help get quality affordable housing in place. Councilmember Gardner inquired how the Affordable Housing Committee would determine who received the waivers if there were more applicants than waivers. Councilmember Isom responded the Committee will review each project and its qualifications. Community Development Director Bob Nicholson advised there is criteria to evaluate what is the best project for the community and its affordable housing needs. He advised that Linda Kirkpatrick intends to submit a request for waivers and the intent of the Committee is to advertise the availability of the waivers in December, accept applications until January 5, and have recommendations for the City Council in mid-January. Mr. Nicholson advised that Mr. Adams received 57 of the 60 available waivers in 1999, and it is anticipated the program will grow with more applicants each year. City Manager Gary Esplin commented staff?s concern is with setting a precedent and the difficulty in keeping track of waivers given for future years. In addition, it is not known how many applications will be received each year. City Council Minutes November 4, 1999 Page Five Councilmember Gardner commented he was concerned at first that Mr. Adams was asking for priority consideration, but he now better understands the request. He reiterated the concern of the Affordable Housing Committee that awarding the waivers now would circumvent or defeat what was established, and by not waiting for the application period to open, Mr. Adams would be put ahead of everyone else. However, his understanding of Mr. Adams? request is that he is not asking for a guarantee, just that the City hold off on his portion of the impact fees until a determination is made by the Committee on award of the waivers. If the waivers were not granted, Mr. Adams would pay the full fees. Mr. Snow again stated his client was not asking for priority consideration, but would simply like to pull his permits and begin construction. He would like to make application for the waivers, hold off paying them until a determination is made, and if declined, Mr. Adams would pay the impact fees immediately. City Attorney Jonathan Wright advised an agreement would have to be entered into recognizing that the program may not be funded. He suggested that interest accrue on the fees if denied. Councilmember Whatcott advised he saw the request as a dilution of the process and not in line with the intent nor desire of the Affordable Housing Committee. Mr. Snow commented it was unfortunate that time is money, but if Mr. Adams waited 3-6 weeks he would lose money. He is ready to begin construction now and needs the permits now. If Mr. Adams pulled his permits now and paid the impact fees, none of the 42 proposed units would come on line until next year nor be able to be considered for an impact fee waiver. He stated his client is willing to pay interest on the impact fees, but is requesting that his project be judged with all other applications received. Mayor McArthur commented affordable housing is part of the City?s General Plan, the request is not circumventing the Affordable Housing Committee, and the City would not lose any financial position. Mr. Snow advised impact fees total approximately $4,300 per unit. Councilmember Gardner commented the City needed to be business friendly while not setting a destructive precedent, and should minimize any ?red tape? within the system it can to make life easier for businessmen. He stated Mr. Adams? request made sense and could meet the needs of the community as far as affordable housing. Councilmember Orton inquired if the City?s goal were to offer more waivers each year. Councilmember Isom responded it was not the intent of the City Council to increase the number each year, only if the City grew to be a very large city. Councilmember Orton stated that while he hated to go against the wishes of the Affordable Housing Committee, the City needed to do whatever it could to make sure as many waivers as possible were given in order to encourage affordable housing. Councilmember Gardner stated he was in favor of the request, as long as the City was not guaranteeing Mr. Adams the waivers. Linda Kirkpatrick advised she planned on building a project with 65 affordable housing units and intends on asking for waivers too. She inquired City Council Minutes November 4, 1999 Page Six if she would have the same opportunity as Mr. Adams to apply for and receive waivers. Councilmember Gardner inquired if she had her financing in place. Ms. Kirkpatrick responded that she did not, but had made initial inquiries. She understood she would have one year?s time within which to actually take out the permit after the waiver had been given. She advised this would be adequate time as the project had already been approved by the City. Councilmember Allen stated there are others in the community who are qualified to build affordable housing too, and she feared they would not apply for the waivers if they heard someone had already applied for most of them. Mayor McArthur advised there are only 60 waivers available each year, and the Affordable Housing Committee will recommend to the City Council who receives them. City Attorney Jonathan Wright advised Ms. Kirkpatrick could make application for the waivers but would not have to draw her permits until December, 2000. All decisions for the entire year will be made by the middle of January. Councilmember Gardner commented that no priority will be given to anyone, and therefore no one should be discouraged from applying for the waivers. He made a motion to approve the request, with the stipulation that an agreement would be entered into and interest paid on the impact fees if the waiver were not granted. The motion died for lack of a second. Councilmember Whatcott stated the process is a new one for the City and a decision needs to be made whether or not the City wants to allow those beginning projects in one year to apply for waivers not available until the next. He stated there may be 150 applications for the 60 available waivers. Councilmember Isom commented that the Affordable Housing Committee?s criteria in awarding waivers will be who is farther along in the process and has everything ready to go. Community Development Director Bob Nicholson stated the City never anticipated this problem when it set up the program. City Manager Gary Esplin advised staff?s concern is that after January 15 when the recipients of the waivers for the year 2000 are determined, someone could then make an application for the year 2001. He suggested the application time be limited from November 1 of one year to January 1 of the next. Councilmember Isom stated the program timetable should remain the same, however, if the Council chooses to consider an application that comes in November or December, that should be up to the Council. City Manager Gary Esplin suggested the application period begin November 1 for the next calendar year. A motion was made by Councilmember Whatcott to change the criteria for the Affordable Housing Committee to be able to consider applications for projects already begun and with permits pulled after November 1 to be City Council Minutes November 4, 1999 Page Seven allowed to be included in the review process for the following year. The motion was seconded by Councilmember Allen. City Attorney Jonathan Wright inquired if this new criteria included the requirement that an agreement be entered into between the parties, and interest on the impact fees if the application was denied. Councilmembers Whatcott and Allen agreed the criteria recommended by the City Attorney be included in their motion. A vote was taken and all voted aye. PUBLIC HEARING/ORDINANCE/ZONE CHANGE: Public hearing to consider a request for a zone change from R-4 Multiple Family Residential to C-3 General Commercial on .547 acres located at 476 E. Riverside Drive just north of the Riverside Apartments. Paul Snow, applicant. Community Development Director Bob Nicholson explained the request is for a minor zone change for a piece of property 64' wide by 370' long located north of the Riverside Apartments. The Planning Commission recommended approval. Mayor McArthur opened the public hearing. Greg Kemp recommended approval of the request. Bindy Boylin inquired if all of Riverside Drive except for the Riverside Apartments would be zoned commercial. She was advised only this parcel will be zoned commercial. Councilmember Gardner advised Ms. Boylin that the property located just north of the Riverside Apartments is already zoned commercial. Ms. Boylin expressed concern that children living in the Riverside Apartments would have no place to play. City Manager Gary Esplin explained that the City is building a trail behind the Riverside Apartments which will tie to the soccer complex and other parks and trails within the system. There being no further public comment, Mayor McArthur closed the public hearing. A motion was made by Councilmember Gardner to approve by ordinance the zone change as requested. The motion was seconded by Councilmember Isom. A roll call vote was taken and all voted aye. PUBLIC HEARING/ORDINANCE/ZONE CHANGE: Public hearing to consider a request to amend the Planned Development zone at McArthur Landing on the northwest corner of 1100 East and Riverside Drive by changing the use from residential to professional office. Rich Lewis, applicant. Community Development Director Bob Nicholson explained that when the post office and rest of the property located south and across the street were zoned PD Commercial a few years ago, a small triangular piece of property on the north side of the street remained PD residential. The owners of this triangular piece of property are proposing a small two story office building with a 3000 sq. ft. footprint along Riverside Drive north of the Southfield residential project. The project proposes a 25' landscaped setback area the length of Riverside Drive frontage, with a 10' rear setback. The side setback is 20' for a two story building, and they will have in excess of this required City Council Minutes November 4, 1999 Page Eight 20'. Kim Talbot is the architect, and the Planning Commission recommended approval. Kim Talbot displayed cross sections and renderings of the proposed office building, and explained there is one vacant lot immediately adjacent to the proposed building with a 10' elevation difference from pad to road. The grade on the site drops 10' from east to west. The applicant is proposing a residential-type commercial building with broken windows along the rear side, with a low profile roof and a residential feel. There is one excess parking stall, and not much room to relocate the building on the lot. Mayor McArthur opened the public hearing. Kevin Ence questioned the elevation, and stated the proposed project would downgrade neighboring properties. He express concern that he would not be able to sell two remaining lots adjacent to the proposed building, with a value lost to him of $50,000-$60,000. He advised a similar request was denied several years ago and at that time the City Council said they would keep Riverside Drive as a residential buffer for commercial zoning. He stated the applicants have proposed the largest possible office building for the site. He stated that while he believed the lot would not be developed as residential, the proposed office building could be a better neighbor by being smaller, reducing the elevation, perhaps putting the entire basement level in the ground, or reduce the building to a single level. The building could then be shifted on the lot. He stated the proposed building is too much and too big for the site, and does a disservice to the neighborhood. He expressed concern that occupants of the proposed building would be able to look into the backyards of neighboring homes. Mayor McArthur advised that several years ago the City Council agreed there would not be commercial development on that side of the road, but the piece of property which is the subject of this request is a difficult piece of property. David Summerhays advised he was in the process of building his home in the area and is less than 100' from the wall. He stated the building is too high and too close to the lot line, and the windows will look into his bedroom window. He suggested lowering the building, and that any proposed office building should be compatible with the neighborhood and not downgrade it. Mr. Talbot advised the reason the building was designed so was because of the geometry of the lot. Councilmember Whatcott inquired of Community Development Director Bob Nicholson if a 6' wall were required between the properties. Mr. Nicholson advised the wall would have to be added to in order be become 6' high. Duane Parker stated the proposed project was unfair to people who moved into a residential area, and the City Council should be concerned about residents of a residential area and not let commercial development in. He stated that while he would prefer to see residential development of the lot, a single story office building would make a lot of difference. He stated if the City Council allowed commercial development on this lot, it would open the door to more commercial development along property to the west. Rosalyn Parker stated if the fence were made higher, it would be like living in a fortress and unfair to residents in the neighborhood. She stated Kevin Ence would never be able to sell the adjoining vacant lots, and they would become weed patches. City Council Minutes November 4, 1999 Page Nine Francis Keohane stated the updated proposal looked worse to him than the original proposal, but it could be made nicer by lowering the building and landscaping. Randy Simonsen, applicant, advised he is trying to make a good project and has been sensitive to the concerns of the neighbors as far as elevations. He stated the roof on the home across the street will be higher than the proposed office building by as much as 4'. He stated the building?s windows would not look down on the neighbors if a 6' fence were built. He stated the proposed building is the best use for the property and a professional office building is a good neighbor as no 24 hour businesses are allowed. He stated an apartment building could be built, but it would not be a good neighbor. He stated the elevation of the building has been brought down in response to the concerns of neighbors. Councilmember Allen inquired if Mr. Simonsen considered lowering the basement further into the ground. Mr. Simonsen stated he had, but it would not be desirable for tenants. Irene Briggs, a resident of Southfield Estates, advised she had two concerns - how narrow the curve of Riverside Drive is and the lack of a turning lane, and the lack of adequate parking at the proposed building. Community Development Director Bob Nicholson advised the City?s parking requirements are standard across the country - four spaces required for every 1,000 sq. ft. of office space. Joe Hagen stated garbage trucks performing early morning pick-up at the commercial development will annoy nearby residents. Kevin Ence advised the applicant had never approached him to work out any differences, but had sent a letter stating the office building was going in. He stated he was flexible and felt the issues could be worked out, but suggested the building be moved to the low side of the lot and be a single level. He also requested the building be moved 20' from the rear property line. Mayor McArthur stated it seemed a single story office building would solve the differences between the parties. Mr. Simonsen commented the building would be single story from the perspective of the neighboring residences. It would only be a two story building from Riverside Drive and would be no higher than the home across the street. He stated not many options were left considering the lot. Councilmember Isom suggested the applicant set a time to meet with neighbors to try and resolve the issue. Councilmember Whatcott stated he could see why the applicant could not move the building to another area of the lot as it would create a traffic nightmare as far as access. Mr. Talbot advised that per City requirements, the driveway must line up with access to the project across the street. Duane Parker advised that if the building were lowered a few feet with a walk-out basement, it would be acceptable to him. Mr. Talbot replied that what Mr. Parker suggested had already been done. City Council Minutes November 4, 1999 Page Ten Councilmember Gardner inquired if the building could be lowered an additional 3-4 feet. Mayor McArthur inquired if the roof could be lowered an additional 2'. Mr. Talbot replied that perhaps another 5' could be added to the setback in the rear, and the roof profile could be as low as 3:12. He stated the windows are not an issue as they will look straight across, not down on neighboring properties. However, the windows could be raised to gather natural light but not look straight out. Planting trees across the back of the building would be another possibility. He stated the building could also be designed so that no window would be straight across from a window of a neighboring home. Councilmember Allen inquired if the basement could be further lowered into the ground. Mr. Talbot replied that it could not as ADA requirements and certain grades had to be met. Mr. Ence suggested the building be reduced to 4000 sq. ft. and one level. There being no further public comment, Mayor McArthur closed the public hearing. City Attorney Jonathan Wright advised the request could not be modified by the City Council as it is a PD zone and elevations, footprints, etc. would be needed. However, it could be tabled. Councilmember Gardner commented that the City has to allow for reasonable use of property, and commercial is probably the best use for this piece of property. However, from the discussion it was obvious a different footprint is desired. He made a motion to table the request in order to allow the applicant time to come back with a different design. City Attorney Jonathan Wright advised the applicant has the right to have his proposal voted upon. The applicant could also request the matter be tabled to allow him to modify the project. Councilmember Gardner?s motion was seconded by Councilmember Isom. Mr. Simonsen advised the Council he would come back with a modified plan in 30 days. He was advised the matter will be scheduled for the first meeting in December. The applicant was encouraged to meet with neighbors for their input. Mayor McArthur called for a vote, and all voted aye. Mayor McArthur called for a ten minute break. PUBLIC HEARING/ORDINANCE: Public hearing to consider approval of an ordinance to regulate sexually oriented businesses. Mayor McArthur stated that a few St. George residents believe that the City Council should ban or prohibit sexually oriented businesses (SOBs) from St. George. However, most St. George citizens and residents understand and appreciate the constitutional freedoms we enjoy in this nation. One of those time-cherished constitutional liberties is the right of free speech. The City?s power to enact and enforce regulatory measures to preserve and promote the public health, safety and welfare may not be so exercised as to limit or City Council Minutes November 4, 1999 Page Eleven abridge the fundamental human liberty of free speech secured by the United States Constitution. The City Council will consider issues presented by a proposed ordinance to regulate sexually oriented businesses within the parameters of the Constitution and laws of the land. Currently the City has various existing ordinances, including zoning ordinances, regulating sexually oriented businesses. The proposed ordinance addresses the regulation of sexually oriented businesses in a global approach in an effort to clarify, address, and implement zoning and regulatory provisions applicable to such businesses. The City Council will enact legislation that fully conforms to the law while exercising the public health, safety, and welfare powers granted to the City Council. Mayor McArthur introduced Gary Kuhlmann, the City?s former City Attorney, who has been retained because of his knowledge and training in this area. Mr. Kuhlmann proposed a constitutionally defensible ordinance while giving the City Council an opportunity to set up regulations for SOBs. The process requires great detail, as the main interests of courts in cases dealing with SOBs is how the ordinance was passed, on what basis, how evaluated, and justified regulations in order to limit the secondary effects of SOBs. Simple nudity and depictions thereof are protected, and with that in mind, the City must validly adopt and enforce an ordinance. The draft ordinance proposes to regulate massage parlors, adult motion picture theatres, etc., and all uses are defined in the ordinance and involve different types of sexually oriented activities. Legitimate massage parlors, etc. are not regulated because they are not tied to sexual conduct. The City?s existing obscenity ordinance has been upheld by the Utah Supreme Court and is still on the books. The City also has ordinances dealing with dance clubs, etc. and this proposed ordinance will pull all these ordinances together, update and consolidate them for a uniform plan to regulate SOBs in a way the Constitution allows. He then cited several cases in which the Supreme Court and other federal courts have addressed what is justifiable regulation under the Constitution and how a city must go about regulating SOBs. The City must provide a reasonable opportunity to allow SOBs to open and operate. Courts have established the City is prohibited from regulating on content of speech, but is allowed to regulate on time, place, manner, and presentation of expression. The City must show substantial governmental interest, and based on that interest the City has to provide for a reasonable number of alternative avenues of communication. The City has to first establish a reason for regulation of SOBs. Then, based on what the impact is and the interests of the City, a determination must be made of what is reasonable and to allow some reasonable amounts of alternative areas where SOBs can be conducted. It is not the City?s obligation to make sure there is a specific property or landlord who will rent to the SOB, but the City must make sure that areas designated for SOBs are reasonable for establishment of a commercial operation and must provide some viable areas. SOBs can only be regulated to avoid secondary impacts on the community caused by their existence. Court have held that cities do not have to do their own studies, and even though the City does not have an SOB in existence, it is still allowed to enact regulation based on what other cities have experienced. Studies from 14-19 other cities have been provided to the Mayor and Council for their review and study. City Attorney Jonathan Wright advised that currently, and within the City?s past history, there has never been a business in St. George that would fit the description of an SOB. Mr. Kuhlmann then reviewed with the Mayor and City Council the study of Dallas Texas in 1997. Councilmember Gardner commented that the less visible the SOB is, the better for the community so as to avoid secondary effects. City Council Minutes November 4, 1999 Page Twelve Mayor McArthur commented that property values decreased for those properties near an SOB, according to the studies he read. Councilmember Allen commented a rise in crime also existed, according to the studies she read. Mr. Kuhlmann then reviewed with the Mayor and City Council studies from Newport News, Virginia (1996), Times Square (1994), Minneapolis, Minnesota (1980), Los Angeles, California (1977), and Fulton County, Georgia. City Attorney Jonathan Wright pointed out for the record that the Fulton County, Georgia study was only recently received by the City and not all Councilmembers have had a chance to thoroughly review it. Mr. Kuhlmann then reviewed with the Mayor and City Council summaries of the following studies: Phoenix, Arizona (1979); Tucson, Arizona; Garden Grove, California (1991); Whittier, California (1978); Indianapolis, Indiana (1984); Cleveland, Ohio (1977); Oklahoma City (1986); Amarillo, Texas (1977); Austin, Texas (1986); Beaumont, Texas (1982); Houston, Texas (1983); and Seattle, Washington (1989). Mr. Kuhlmann commented that patterns in most if not all of the studies indicate a decrease in property values, an increase in crime, and found that a concentration of SOBs actually amplifies the problems. Two methods are used by cities for regulation of SOBs - the Boston method which concentrates SOBs in a single area which can be more readily patrolled; and the Detroit method which is a dispersal method in order to alleviate multiplication of secondary effects. The draft ordinance proposes the Detroit method. Mr. Kuhlmann then reviewed the draft ordinance and discussed alternatives. City Attorney Jonathan Wright recommended that the public hearing be held, public comments taken, but any formal action be delayed in order to give the Mayor and City Councilmembers additional time to review all the studies and draft ordinance. Mayor McArthur asked for a clarification of the definitions of ?adult bookstore? and ?novelty store.? Mr. Kuhlmann responded that an ?adult bookstore? is a business in which a significant portion of revenue, stock in trade, or portion of interior business is devoted to adult books. A ?significant portion? would be more than 50%. A novelty store sells sexual devices. Mr. Kuhlmann advised that as far as location requirements, he met with the Planning Department to discuss zones where the secondary impacts of SOBs would be less, staying away from residential zones, and taking into consideration the likely increase in crime, the character of the neighborhood, and concern for children. Possible locations were then plotted. The City?s zoning map was reviewed with buffers of 2000', 1500', 1000', and 750' from residential zones. The Planning Commission recommended that SOBs be allowed in M-1 zones. Using 1000' as a buffer, five or six SOBs would be able to locate within the City?s M-1 zones. Councilmember Isom inquired if population of the community could be used as a basis for location of SOBs. Mr. Kuhlmann replied that the courts will determine a reasonable number of means of communication, the land area, and population, and consider all these factors. City Council Minutes November 4, 1999 Page Thirteen Councilmember Isom inquired which courts made this determination. Mr. Kuhlmann responded that most of the court cases are in federal courts and the U. S. Supreme Court. Most standards are being established by federal courts. Mr. Kuhlmann advised that based on the valuations, studies, and secondary impacts, he recommended a 1000' separation between SOBs within the M-1 zone. The City?s GIS Director, Dave Evans, will produce a more refined map to better show the exact locations. City Attorney Jonathan Wright clarified that the 1000' separation is from door-to-door, not property line to property line. Mr. Kuhlmann advised the City Council also needed to determine how to measure the distance as the ordinance provides for alternatives - property line to property line, building to property line, or building to building. He stated that the first SOB to locate will dictate where others may locate. Councilmember Orton stated he would prefer to wait to make a determination on distances until a map to scale were provided. Councilmember Isom stated she would like to further study the information provided to her. City Attorney Jonathan Wright advised the City Council must be specific on how distance measurements are taken, according to a recent Utah court decision. Mr. Kuhlmann advised the ordinance provides for investigation of an applicant, with strict timelines to be indicated. He recommended a turn-around time of 20 days for the City Manager to make a decision on the application so as not to restrict free speech any longer than necessary. Mr. Kuhlmann then reviewed proposed provisions governing the annual license fee, inspection rights, advertising, lighting and signage restrictions, hours of operation, live entertainment, and newsracks. Mayor McArthur opened the public hearing. Lorri Kocinski-Puchlik, Executive Director of the St. George Area Chamber of Commerce, advised the Chamber represented 720 area businesses. She read a statement supporting the enactment of legislation to regulate SOBS while preserving their constitutional liberty. She stated it was important to promote tourism and economic development, yet allow a safe place to locate SOBs. She expressed concern about the secondary effects of SOBs on property values, crime, public safety, and the total image that St. George portrays and the Chamber?s ability to market St. George. J. T. Frandsen advised he had strong feelings on the subject and did not want an SOB in the community as the negative secondary effects are overwhelmingly convincing. He suggested the City exclude any reasonable opportunity for a SOB to locate in St. George, but if they could not, to challenge their location in court. Homer Hansen advised the City of Mesquite stood up to a SOB which located there, and St. George should do the same. He stated he would be in favor of an increase in taxes to pay for any resulting law suit. He advised the present day interpretation of the U. S. Constitution is too liberal. Joe Hagen advised that patrons of SOBs would still have to drive by residential neighborhoods to get to the SOB. He stated it was hard to believe St. George was discussing SOBs as a possibility, and he would be happy to pay higher taxes in order to fight their location here. City Council Minutes November 4, 1999 Page Fourteen Vardell Curtis, executive officer of the local real estate board, spoke in favor of the ordinance, and encouraged the Council in their decision to be proactive. He stated that should the ordinance ever be challenged, the Board of Realtors would support the ordinance to the fullest measure. He stated that while he understood SOBs could not be prohibited, they should be regulated, and he encouraged the City Council to make the ordinance as restrictive as legally possible. Councilmember Gardner inquired of Mr. Hagen if he felt the City Council should make the ordinance even more restrictive than proposed. Mr. Hagen replied the City Council should make the ordinance extremely restrictive. There being no further public comment, Mayor McArthur closed the public hearing. He recommended that based on the recommendation from the City Attorney, the matter be tabled until the next City Council meeting. A motion to table any action on this item was made by Councilmember Orton. The motion was seconded by Councilmember Isom, and all voted aye. MINUTES: Consider approval of the minutes of the City Council work meeting held October 14, 1999. A motion to approve the minutes as presented was made by Councilmember Whatcott. The motion was seconded by Councilmember Orton, and all voted aye. Consider approval of the minutes of the regular City Council meeting held October 21, 1999. A motion to approve the minutes as presented was made by Councilmember Allen. The motion was seconded by Councilmember Isom, and all voted aye. BID OPENING: Consider award of the contract for Phase 2 of the Southgate Golf Course irrigation improvements. City Manager Gary Esplin explained the original proposal was broken into two parts in order to facilitate the first phase and subject to negotiations with the low bidder to reduce the scope of the project. The City is now ready to proceed with the second phase, however drainage problems have been experienced and a high horse-power motor is needed to pump the water back to the cemetery which was not in the original bid. The second phase will cost $193,385, making the total cost of the project $441,085. This will give the City additional pond storage for watering the golf courses, cemetery and park. Funding will come from the transportation fund, as installation of the bridge is making this work necessary. However, additional property will be freed up and the City can sell it as commercial property and recoup some of its costs. Additional funds will also come from the various departments affected. A motion was made by Councilmember Isom to award the bid to Rosenberg Associates/Golf Services Group in the amount of $193,385. The motion was seconded by Councilmember Whatcott, and all voted aye. City Council Minutes November 4, 1999 Page Fifteen ADJOURN TO EXECUTIVE SESSION: A motion to adjourn to an executive session to discuss litigation and a property purchase was made by Councilmember Allen. The motion was seconded by Councilmember Orton, and all voted aye. RECONVENE: A motion to reconvene was made by Councilmember Isom. The motion was seconded by Councilmember Whatcott, and all voted aye. MISCELLANEOUS: Councilmember Gardner requested the creation of a pictorial directory of all City employees so that Councilmembers can familiarize themselves with all City employees, not just those with whom they come in contact. He stated there has been insinuation made by City employees that they have been forbidden to talk to the City Council about any concerns they may have. He stated that on the contrary, the City Council is very open and should not be perceived to be ?untouchable.? He advised that several employees are interested in unionizing. City Manager Esplin stated the City will not take a position on unions one way or another, but will not recognize them. Councilmember Gardner suggested creation of a brochure or pamphlet listing completed City projects to clear up misinformation in the community. EXPLANATION OF PAY PLAN: City Manager Gary Esplin reviewed with the City Council the City?s employee pay plan. Mayor McArthur and the City Council recommended a ?distinguished? employee evaluation classification for the City Manager. The meeting adjourned. _____________________________ Gay Cragun, City Recorder