City Council Minutes

Thursday, June 8,2006

JUNE 8, 2006, 4:00 P.M.

Mayor Daniel McArthur
Council Member Suzanne Allen
Council Member Larry Gardner
Council Member Rod Orton
City Manager Gary Esplin
City Attorney Shawn Guzman
Deputy City Attorney Paula Houston
City Recorder Gay Cragun

Council Member Gail Bunker
Council Member Bob Whatcott

Mayor McArthur called the meeting to order and welcomed all present. The pledge of allegiance was led by Council Member Gardner, and the invocation was offered by Council Member Allen.

Community Development Director Bob Nicholson displayed a map of the Little Valley area and reviewed his handout entitled ?Little Valley General Plan Update?.

City Manager Gary Esplin advised that the master plan for parks and trails will be presented to the Mayor and City Council in 30 days.

Council Member Orton suggested protecting the horse users who are already located within Little Valley but allow density up to R-1-10 in other areas of Little Valley, with 20% of the project area turned over to a non-profit organization for attainable housing.

Jim Raines advised that it did not make sense to cluster R-1-10. He stated that development should not be based on density, but on quality and produc, with a win/win for developers and the City.

City Manager Gary Esplin commented that TNDs (Traditional Neighborhood Districts) have smaller lots and zero lot lines to encourage different types of ownership - and that is the win/win.

Council Member Gardner commented that a developer can do either clustering and open space or work force housing, but to do both goes beyond their financial ability.

Mr. Raines advised that he ran a pro forma on 320 acres in Little Valley. Two units per acre yields the same return as five units per acre with 20% open space. He inquired where the incentive was for developers to cluster.

City Manager Gary Esplin commented that the overall question is what to do in the entire community - the same question faces the Trails, the Ledges, the Lakes, and the South Block. All areas are facing planning pressures. He suggested looking at TNDs.

Council Member Allen commented that current zoning isolates income groups, and that is not what the City is after for a sense of community.

Mayor McArthur commented that the unique thing about the Little Valley area is the horse properties must be blended in.

Community Development Director Bob Nicholson commented that the City is now faced with what to do to protect the horse owners? interests as much as reasonable and make new development work for them.

City Manager Gary Esplin commented that the next step would be to hold public hearings for more input and to present concepts such as protecting the horse owners with trails and buffers and feathering in around the existing uses, but to tie parks and schools with TND opportunities and maximize opens space. Mr. Esplin commented that flexibility was needed, and TNDs provide that opportunity. Not all development will be TNDs, but it should be encouraged.

Council Member Orton commented that all developers were after highest and best use for profitability, and if the City does not have something to bargain, its hands will be tied.

City Manager Gary Esplin commented that the City needed to make sure that development provides neighborhood commercial and office uses.

Bob Nicholson presented a power point presentation on the TND zone, and distributed a draft TND criteria manual and a draft TND zoning code. The materials will be distributed for a three week public review and comment period. The TND committee recommends a 40 acre minimum for a TND.

City Manager Gary Esplin suggested that an open house be scheduled to review the concept.

Mr. Nicholson advised that the approval process would be similar to the PD approval process, with a site plan and renderings required.

Deputy City Attorney Paula Houston advised that a mandatory development agreement would also be required.

Jim Raines commented that there are no density limitations in a TND, and no general plan amendment requirement. An overlay zone for TNDs must be made a part of the general plan.

City Manager Gary Esplin clarified that the City Council still maintains approval of the project. A TND provides an opportunity for attainable housing, and if the City

mandates inclusionary zoning, then a TND can meet this mandate because of the smaller lots.

Council Member Orton commented that once a TND is approved, the density can be increased without any guarantee of attainable housing.

City Manager Gary Esplin replied that the City Council has to approve the concept, but a TND is not tied to only attainable housing. A TND is an opportunity to meet the demand for attainable housing, but attainable housing in itself is another issue.

Jim Raines commented that his firm has 3,200 townhomes in design right now because they are the only product on the market that a developer can build for under $200,000 - there is no other zoning available, and this is where the demand is. A TND will give the free market another alternative to meet that $200,000 price.

Community Development Director Bob Nicholson commented that a TND will not work everywhere. Another concept is lot size averaging, with the trade off being open space and smaller lots interspersed among larger lots. He commented that this would be a nice option in the R-1-10 zone. He advised that lot averaging could be adopted as part of the zoning ordinance within the next month to six weeks.

Max Rose and Craig Seegmiller were present representing the neighborhood.

Mr. Rose commented that when a residencein his neighborhood ceased to be used as a bed and breakfast, the use should have been eliminated, but instead it is now used as a group home.

City Manager Gary Esplin commented that while this was a good idea and should have been done, it had nothing to do with use of the residence as a group home.

City Attorney Shawn Guzman explained that group homes are protected under federal law.

Deputy City Attorney Paula Houston explained that group homes are treated the same across the country. West Valley, Orem and Holliday have been sued over the issue, and unfortunately, every one has lost when they tried to eliminate a group home out of residential neighborhoods. This cannot be done under the Fair Housing Act as the federal government has made it mandatory to provide housing for anyone with a disability. Recovering drug and alcohol addicts are considered disabled under federal law. The Fair Housing Act defines a group home as any home where two or more disabled people live, and no treatment is required. Cities have the right to limit the number of residents and impose all the normal ordinance requirements such as setbacks, etc., however, under the law cities have to provide them with reasonable accommodations, such as allowing a blind person to have a seeing eye dog. These reasonable accommodations are decided on a case by case basis as to what is reasonable. A hearing is held to hear evidence from both sides. This is a balancing test of city interests vs. the interests of the disabled person and the benefit asked for. This hearing should be held before a residence is used as a group home. However, it is mandatory for cities to allow group homes in residential areas, in any

neighborhood, and the disabled get to choose the home they want to live in. Cities cannot say they will allow group home in one neighborhood, but not another.

City Manager Gary Esplin commented that the City of St. George has an ordinance which allows four unrelated persons to live in one home, and a group home would have that same right. When a group home adds the fifth person or sixth or eighth, then a hearing is to be held, and the city has to present a reason why the accommodation should be denied.

Ms. Houston advised that there are no standards for a group home, however, there are standards if treatment is being performed.

City Attorney Shawn Guzman emphasized that requiring a reasonable accommodation is a low hurdle for the group homes to jump through, and cities have to be able to show good reason why they should not be accommodated.

Deputy City Attorney Paula Houston advised that group homes have to show there is a necessity to provide the accommodation - either for financial viability or therapeutic support. Treatment facilities are different and subject to state licensing.

City Manager Gary Esplin commented that treatment facilities are commercial and can be regulated.

Gloria Shakespeare inquired who was protecting the neighborhoods, and commented that financial viability was really in favor of the person running the business.

Deputy City Attorney Paula Houston advised that a business license is needed, and while group homes are private, they are regulated by the Fair Housing Act.

City Attorney Shawn Guzman advised that the courts have said that they will also invalidate CC&Rs which try to regulate group homes if they are against public policy, and if there is a discriminatory effect they will not be able to impose them.

Deputy City Attorney Paula Houston advised that a group home must be very specific when it comes to financial viability. They have to provide their budgets, finances and bills as part of the evidence to prove that they need a certain number of residents to keep the business alive. Supervision is not required in a group home, and a city cannot impose that requirement. People who are currently using drugs or who have been convicted of being a dealer or manufacturer of a controlled substance are not protected.

Gloria Shakespeare inquired who would do the background checks.

Mayor McArthur advised that cities could not perform background checks.

City Manager Gary Esplin advised that when a group home applies for its business license they would have to say that they will not be housing these types of people. If, by chance, the City found out there were dealers or manufacturers of illegal drugs, the City could question the business license at this point.

City Attorney Shawn Guzman advised that cities can also say that a group home resident cannot be adjudicated and still under the jurisdiction of the courts.

City Manager Gary Esplin advised the license can be revoked in this event.

City Attorney Shawn Guzman advised that it cannot be assumed that recovering drug addicts and alcoholics have been convicted of a crime, and he cautioned against stereotyping. He advised that group homes can also consist of the mentally handicapped.

Deputy City Attorney Paula Houston advised that there is a provision in the Fair Housing Act which states that if a person is a danger to the neighborhood, he is not covered by the Act. If a group home contains residents who are a high risk, the city must provide an accommodation for higher security.

City Manager Gary Esplin reiterated that group homes do not need a conditional use permit nor hearing if there are four residents or less. The City will contact those group homes who are not licensed and have more than four unrelated persons.

City Attorney Shawn Guzman reminded that a city can still hold a group home to all its ordinances, but might have to make certain accommodations such as letting them build within a setback to accommodate a wheelchair ramp, etc. He advised that it would be appropriate to inquire on the business license application the total square feet of the residence, number of bathrooms, size of windows, etc.

Craig Seegmiller commented that he was told there was a family living in the garage of a group home by the college. There have also been a large number of police cars at the residence. Residents of the group home also went around the neighborhood taking pictures of the homes in an attempt to intimidate the neighbors.

Gloria Shakespeare commented that 70% of criminals in prison are there for drug-related crimes, and drug and alcohol addicts should not be classified as disabled because their drug and alcohol use is a choice. She stated that locating addicts in neighborhoods becomes a safety and health issue for the entire neighborhood.

City Manager Gary Esplin commented that the City will do the best it can within the framework of the court decisions. The City must allow four unrelated persons to live in a group home, and the City cannot regulate it in any way unless the residents are adjudicated, users or dealers.

Enforcement Officer Brad Young advised that he has made several rental inspections of group homes located on South Main and at 194 South 600 East, and deficiencies have been noted and will be corrected.

MOTION: A motion to adjourn to an executive session to discuss personnel was made by Council Member Gardner.
SECOND: The motion was seconded by Council Member Orton.
VOTE: Mayor McArthur called for a roll call vote, as follows:

Council Member Gardner - aye
Council Member Orton - aye
Council Member Allen - aye

The vote was unanimous and the motion carried.

MOTION: A motion to reconvene was made by Council Member Gardner
SECOND: The motion was seconded by Council Member Allen.
VOTE: Mayor McArthur called for a vote, and all voted aye. The motion carried.

Marc Mortensen advised that the Washington County Commission has created an executive committee to create the County land bill MOU, and would like three representatives from the City to serve on the Steering Committee.

Council Member Gardner suggested that Doug Solstad be appointed to the steering committee.

Council Member Orton commented that the Washington County Board of Realtors is complaining about confiscation by the City of A-frame signs used for open houses.

City Attorney Shawn Guzman replied that most of the signs seized are located off-premise, or on sidewalks, or trails.

A brief discussion was held on pole signs. City Attorney Shawn Guzman advised that an ordinance is in the works which deals with garage sale signs and issuance of a permit which would allow them to remain in place for 24 hours.

Council Member Allen advised that at a recent workforce housing meeting, discussion was held on an ombudsman program. Each city will be asked to give 10? to 35? per capita to get the program going, and mortgage companies will be asked to give $1 per closing for each mortgage. This will be a donation, not a tax, and will be used toward an ombudsman office at the Five County AOG.

Council Member Allen advised that as part of the homecoming ceremony for the 222, a flag retirement ceremony will be held June 30 at 6:30 p.m. at the Elks Lodge.

The meeting then adjourned.

Gay Cragun, City Recorder