City Council Minutes

Thursday, July 17,2008



ST. GEORGE CITY COUNCIL MINUTES
REGULAR MEETING
JULY 17, 2008, 4:00 P.M.
CITY COUNCIL CHAMBERS

PRESENT:
Mayor Daniel McArthur
Council Member Jon Pike
Council Member Gil Almquist
Council Member Gloria Shakespeare
Council Member Suzanne Allen
Council Member Gail Bunker
City Attorney Shawn Guzman
Support Services Director Marc Mortensen
City Recorder Gay Cragun

EXCUSED:
City Manager Gary Esplin

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

Mayor McArthur advised that the Energy Services Department is the recipient of the APPA Safety Award. The Mayor and City Council congratulated members of the Energy Services Department and presented the award to Phil Solomon, Energy Services Director.

Mr. Solomon commented that the Energy Services Department also received the platinum award for meeting reliability standards and the Intermountain Power Superintendent?s Safety Award.

TABLE ITEMS:
Support Services Director Marc Mortensen advised that two items were tabled from the agenda, Item 2B, to consider award of bid for the Fields Phase 2 restroom building design, and Item 6D, to consider approval of replacement airport minimum commercial standards, building standards and rules and regulations.

Mayor McArthur announced that the premiere of the movie, Flyboys, will be held in St. George on August 15.

AWARD OF BID:
Consider award of bid for the 2008 fog seal project.

Purchasing Manager Connie Hood advised that two bids were received. She recommended award of the bid to the low bidder, Gordon Paving, in the amount of $96,782.92. The City?s estimate was $97,000. This amount is part of the $800,000 approved in the budget for the pavement management program.

MOTION: A motion was made by Council Member Allen to award the bid as recommended.
SECOND: The motion was seconded by Council Member Bunker.
VOTE: Mayor McArthur called for a vote, and all voted aye. The motion carried.

Steve Perry explained that after the process of chip sealing is completed a fog seal project will be commenced. Fog sealing has not been used in the past over chip sealing because of the time it takes for the sealing to set up, but a new product has been found which sets up in four hours or less.

Council Member Shakespeare inquired what determines when lines on roads are repainted.

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Mr. Perry replied the paint is water based and does not last as long as oil based paint, but oil based paint can no longer be used because it is considered an environmental hazard. There is a budget for painting lines and roads and it is used up each year.

Mayor McArthur advised that the City tries to restripe all lines twice each year.

Council Member Almquist advised there is a new epoxy seal product which paint sprayer trucks are spraying over water based paint which causes the water based paint to last 40% longer. The trucks require modification, however.

AWARD OF BID:
Consider award of bid for the Fields Phase 2 restroom building design.

This item was tabled.

DAYTIME WATERING RESTRICTIONS:
Support Services Manager Marc Mortensen commented that water restrictions are typically implemented in April or May but were delayed this year because of the landscape ordinance.

Conservation Coordinator Ren? Fleming explained that because April and May were cold and wet, it seemed appropriate to still allow planting of sod, so implementation of the restrictions was not recommended. She advised the City is now requesting that culinary water use be restricted between the hours of 8:00 a.m. and 8:00 p.m. It is not efficient to water outside
landscaping during this time because of evaporation. There are several programs offered by the City, including the free residential landscape water audit, the landscape rebate program, and irrigation design rebate program.

Council Member Bunker commented that some churches and public buildings use reuse water.

Ms. Fleming explained that reuse and irrigation water are exempt from the restrictions. Reuse and irrigation water are used to water many public facilities , and watering of these facilities sometimes has to take place in the day because the water has to be used when it is available.

Mayor McArthur commented that the City could not possibly water all its facilities during nighttime hours only.

Ms. Fleming advised that she would appear before the City Council again in September to ask that the restrictions be lifted.

MOTION: A motion was made by Council Member Bunker to approve the daytime watering restrictions.
SECOND: The motion was seconded by Council Member Pike.
VOTE: Mayor McArthur called for a vote, and all voted aye. The motion carried.

Ms. Fleming explained the City has two solar programs, a net metering program and an incentive program. The City?s goal is to have a solar farm where customers can buy into it and in exchange will get credit on their electric bill based on the amount of ownership and energy it generates. She advised it is hoped the program can be launched in October. She advised the solar farm will provide tax credits to residential customers only at this time, and it will be located near the Wastewater Treatment Plant. She advised the City is working with Dixie REA on the solar farm so all St. George customers can participate in it. The City is also working with other cities and Dixie REA on the Dixie Alert conservation program.



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REQUEST FOR WAIVER OF FEES:
Consider a re quest from the Domestic Violence Coalition to waive the fee for use of the Opera House/Social Hall/Plaza.

Support Services Manager Marc Mortensen explained the Domestic Violence Coalition would like to use the Pioneer Center for the Arts for an event to honor people who have lived through difficult situations and the law enforcement officers who have helped. They would like to use the Center on October 28. The value of the fee waiver is $200.

Police Chief Marlon Stratton commented that the St. George Police Department has been a part of the Domestic Violence Coalition for several years and it provides a great help for victims. He recommended support of the event.

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

AGREEMENT:
Consider approval of a reimbursement agreement with Quality Development to construct a portion of Desert Canyon Drive.

Support Services Manager Marc Mortensen advised this matter was previously discussed at a work meeting and a field trip was taken to the site. The agreement allows for construction costs to be shared and will take the road out to the replacement airport.

Mayor McArthur commented that Quality Development is paying for their portion of the road and the City is paying for its portion. The road is needed to do dirt work for the airport.

Mr. Mortensen advised it is a 50/50 cost share at $125,000 each.

Public Works Director Larry Bulloch requested that the matter be tabled as a suggestion that can save the City money is being considered. A perimeter road is being built around the airport and it has been suggested that connecting a road to it will save money for both parties. That money can then be transferred to the general aviation side of the airport. The City is working with Quality Development to realign the road to fit the future subdividing of land in that area. This will not delay work on the airport if the perimeter road is used because the contractor will build it as part of his contract.

MOTION: A motion was made by Council Member Bunker to table the item.
SECOND: The motion was seconded by Council Member Shakespeare.
VOTE: Mayor McArthur called for a vote, and all voted aye. The motion carried.

AIRPORT STANDARDS:
Consider approval of Replacement Airport minimum commercial standards, building standards and rules and regulations.

This item was tabled.

Mayor McArthur called for a brief break. Upon conclusion of the break, the meeting continued.

PUBLIC HEARING/ZONE CHANGE/ORDINANCE:
Public hearing to consider approval of a zone change from R-1-10 to PD Commercial on 1.42 acres located at approximately 1300 East 900 South Street. Neil Glauser, Blue Mountain Partners, applicant.



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Community Development Director Bob Nicholson presented a power point presentation covering the property location, zoning, general plan vicinity, an aerial photo of the site, and current site plan. City Code says that the land use plan within residential areas may contain small isolated sites less desirable for residential use which may be suitable for business or commercial, even though they are not designated on the land use plan. They are to be evaluated on a case-by-case basis. The applicant?s previous application was for three three-story buildings on approximately five acres. The current application is for one building on 1.4 acres with parking underneath the building and more around the building, for a total of 99 spaces. The building will be two stories with a total of 24,636 sq. ft. The exterior will be stucco and stone with a tile roof. The issue was discussed for an hour at the Planning Commission meeting of April 22, and the Planning Commission recommended approval on a four to two vote. Office buildings are typically good neighbors as they are closed in the evenings and on weekends and do no generate a lot of traffic. General office generates 1.5 trips per 1000 sq. ft. and this is not a big change in the traffic pattern that currently exists there. If residential were built on the site it would generate 100 trips throughout the day.

Neil Glauser, representing Blue Mountain Partners, applicant, advised the subject site is within close proximity to a major arterial and he did not believe the site was as desirable for residential development. Most of the neighboring homes were built over 15 years ago when River Road was two lanes. The only type of residential that would work on this property is short term residential and he did not feel that would be as good a neighbor as commercial.

Mayor McArthur advised he would limit public comments to five minutes each. He then opened the public hearing.

Russ Heath, a resident of Meadowcreek, presented the Mayor with a petition recommending denial of the request.

Dean Williams, a resident of Meadowcreek, distributed a copy of letter from attorney Justin Baer, representing the Van Ottens, and requested that it be made part of the record. See Exhibit ?A? attached hereto. He requested the City Council read the letter before they made a decision. He advised Mr. Baer?s analysis of the law is correct and that the request for a zone change should be denied. He stated there has been no substantial change in the project to merit a rehearing of the matter.

Mayor McArthur replied that a significant change included a change in size, or look of the building, and that is to be determined only by the City Council.

City Attorney Shawn Guzman clarified that the City Council is the body who determines whether a significant change has taken place.

Mr. Williams commented the request should not be heard again for one year since it was denied on January 10. The property should remain residential and not be changed to commercial. The City Council represents the people and they were not elected to change the law or make it, as the law is clear and unambiguous. The City Council?s obligation is to enforce the law. He stated he has heard some Council Members say they are friends with the applicants, but their responsibility is to carry out the wishes of the people and they are obligated to set aside their personal feelings and follow the law. The hearing should not take place and the petition should be denied.

George Mueller, a resident of Meadowcreek, commented the project was voted down in January and the information given on traffic trips during peak hours is not accurate. He stated there was enough traffic to require a traffic study. He commented the City Council was elected to represent the people and most in the area oppose the project. He stated this request is just the start and others will follow.


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Norman Blake commented his home lies to the east of the proposed project and he is opposed to it. He stated he wanted to see homes built there, and the proposed project will ruin his view.

Darwin Whittaker commented that a recent article in the paper made it appear the deck was already stacked, and the article did not mention the citizens in the area who are against the project. The article did not mention anything about the intrusion upon acreage that would make a beautiful housing development like Meadwocreek. He inquired of Mr. Glauser what his intentions were for the rest of the property.

Mayor McArthur commented the previous application was for three three-story buildings and was a combined residential/commercial project. The previous application was also less then five acres, and the City requires a mixed residential/commercial project to be a minimum of five acres.

Mr. Whittaker commented the acreage on the east side of Norm Blake cannot be used, and the applicants would be wise to not build the project at all because of the economic forecast and vacancies which already exist in commercial buildings.

Dean Williams inquired of the City Council what constituted a significant change.

City Attorney Shawn Guzman replied that the public will first be allowed to make their points, and then all the concerns would be addressed at one time.

Brian Blackham, a resident of Meadowcreek, commented residents in the area envision a continuous residential area, and as a real estate expert, a commercial/residential mix does not do as well over time. Residents in the area want one story residential homes and to stay with what the vision of the City was to start with. He advised that the petition in opposition to the request was signed by residents of subdivisions all around the area, not just Meadowcreek.

Eileen Blake commented that someone called her and said Mr. Morby said he was negotiating with them for their property, and this is not true. They are not willing to sell and want it left as is.

Jeff Morby, representing Blue Mountain, explained that he did not mean to represent that he was negotiating with the Blakes, although he has talked with them to see if they were interested in selling their property. They said they were not interested, and that was the end of it. He stated he had no intention of doing anything with the Blake property. He stated he felt the project was a good one. The applicants were told in October to come back with a project without mixed use and reduced in size and that they would receive a favorable response. The City even waived the fees. He stated he and the other applicants are also represented by the City Council and they own the property and have some rights. They do not need to be intimidated and to say that they do not have a right to speak is not appropriate. The project has been changed substantially. The people involved in the company are committed to St. George and do not walk away from projects. He asked that they be given an opportunity to do a good job, starting with Building A. The project can be a good neighbor and fit into the community. He stated he felt the project would be successful and he knows what the market is.

Mayor McArthur inquired of Mr. Morby what the intention was for the rest of the property.

Mr. Morby replied that they would proceed with similar development of the property. They will not impose upon the Blakes? right-of-way. The long range goal is to look at similar development. He stated he was not sure what the Iversons would do, but that they would


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be a major player. He stated he felt the project would have a small impact on Meadowcreek, considering the location of the hospital, bank and 700 South.

Mayor McArthur explained that this area was originally brought into the City as R-1-10 as a holding zone, and master planning is not site specific. Property now being annexed to the City is brought in as Mining and Grazing as a holding zone until it is changed at some time in the future.

Mr. Morby commented with regard to the concept of a continuing residential corridor, this property backs onto another commercial building and the windmill farm, which someday will be commercial. A corridor of commercial makes a good break for residential, and he stated he felt this would be more appropriate in long range use. 20-30 years from now this development will be much more viable than residential would.

Brian Blackham commented that the request now is for one building, but there will be two more to go, and when combined with Iverson?s property, there will be five buildings.

Mayor McArthur advised that only one building is being considered now, not five.

George Mueller expressed concern that this request is just a foot in the door and it is obvious the applicants have plans for more buildings. He inquired what protection there was for residents to live in the area the way they want to live. He called on the City Council to represent them as they do not want to be near a large commercial area.

Dean Williams commented the area was set up as low density residential, not as a holding area, and several thousand residents have relied on that commitment and invested their retirement in the area.

Mayor McArthur commented when the area was brought in as R-1-10, it was never intended to remain that zone. The master plan is not site specific, and in this case there is residential and commercial next to the subject property.

Mr. Williams commented the City Council has to protect the integrity of the zone and conduct can create binding obligations. When the City tells thousands of people the area is residential and they rely on that, that is a commitment and the City is bound to keep the area residential. The applicants? rights are not being denied because when they bought the property they knew it was zoned residential and they do not now have the right to change it.

Council Member Allen commented that the land Meadowcreek now sits on was also zoned R-1-10, and it required a zone change to PD so that it could be buit.

Council Member Almquist commented at the time the zone change for Meadowcreek was requested, there were traffic, density and access concerns and some were adamantly opposed to th zone change. History is now repeating itself.

Dean Williams commented that before the petition can be allowed it must be shown there has been a significant change.

City Attorney Shawn Guzman advised he would address those questions at the end of the public hearing.

Mr. Williams inquired of Mr. Guzman what the significant change was.

Mr. Guzman replied he would address this after the public hearing.


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Russ Heath advised that Southfield and Heritage Lane border the vacant lot behind the church on 900. The City gave permission to build three story homes adjacent to them, and those homes that are surrounded by three story buildings cannot be sold.

Mayor McArthur replied that is one reason in the last meeting the City Council said the proposed buildings were too massive and the site too small for mixed use.

Neil Glauser, applicant, commented there is a misconception that they are the only ones to ever request a zone change in this area and that it would be used as a foot in the door. A lot of zone changes have taken place since the Whatcott building was built in 1995. There has been no significant residential building in the area in the last 13 years. The only development has been Zions Bank, the hospital, and Riverside Drive. He stated while he understood the neighbors wanted things to remain the same, when they purchased their homes River Road was only two lanes. It would be hard to put in the same type of homes they live in and it cannot be done. The best they could do would be short term residential. He stated he wished the neighbors would realize that the property will not have townhomes like they live in today.

There being no further public comment, Mayor McArthur closed the public hearing.

City Attorney Shawn Guzman advised that Mr. Williams stated that a contract has been created and the City is bound to keep the same zoning. Under Utah law this is clearly not the case. The City Council has the authority to change zoning, and this was a clear misstatement of the law. To address the issues raised by Mr. Baer in his letter, he states that the previous denial was based on the desire of the City Council to keep the area residential and not because of density considerations. If the minutes are read in their entirety, it is clear the City Council made statements concerning other elements of not keeping it residential. He stated he did not believe all the members of the City Council voted to deny the earlier request with the thought of keeping it residential. With regard to whether a substantial change exists, it is the option of the City Council to determine if a substantial change exists. The current application is roughly a 40% change in land area, and certainly that could be determined by the Council as a significant change. He suggested that any motion made by the City Council include the finding that this issue was properly considered by the Planning Commission and City Council as a significant change from the original application.

Community Development Director Bob Nicholson commented that a significant change can include the land area involved. The original application was for approximately five acres and three buildings, each three stories tall. The application now is for 1.4 acres, one building, two stories tall. He stated he felt this was a significant change. Staff cannot second guess motives nor speculate on future applications; all it can do is take each application on its own merits and see if there is a change from the previous request, and clearly this is a change. The general plan designates the site as medium density residential. Technically Meadowcreek is not low density residential because it has more than four units per acre, and the zoning was changed to accommodate the project. Within existing residential areas there are small isolated vacant sites less desirable for residential which might be suitable for businesses. They are too numerous to designate on the general plan and need to be evaluated on a case by case basis. This site is located near a busy intersection and is adjacent to an existing commercial building. The request meets the criteria set forth in the general plan.

Mayor McArthur inquired if there were any two story units within the Meadowcreek Subdivision or others nearby.

A gentleman from the audience replied that there were not.

Norm Blake suggested that the applicants could purchase property by Don Taylor that would be half the price and could build buildings ten stories high if they wanted.


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Council Member Allen commented that if Mr. Blake is worried about the view being blocked by a two story building, a two story home would also be the same height. There is no guarantee that two story homes would not be built there if the applicant decided to go ahead with the R-1-10 zoning or multiple family zoning.

Council Member Bunker commented that the City Council represents all the citizens, even the applicants. She commented that once a project built, it is there forever and the residents
must live with it. She stated that she has tried hard to listen to the public comment with objectivity, but she is against the project for four reasons: (1) in her mind River Road, with all the commercial including the windmill project, makes a sound barrier for those to the east and to the back of the property and it makes sense to continue the residential from Meadowcreek to the New England subdivision; (2) one big building is an encroachment and it has to stop somewhere; (3) the existing commercial building is a prefect one to have some kind of residential abutment and from Foremaster one can see that continuing to 900 South and beyond; and (4) her reason is the same as it was in the Planning Commission meeting in June 2007; she does not want to see the zone change.

Council Member Allen inquired about a zone change to PD residential.

Council Member Bunker replied that some kind of residential zoning made sense to her.

Council Member Pike commented that he has been on the site many times and works in the Coral Desert building around the corner from the site. He has driven the site and walked it. What gave him the most heartburn last time was wrapping a commercial project around a residence. However, as he looked at the surrounding area and property already zoned PD Commercial, including Coral Desert, and looked at where the road will go in, and looked at the wash between Coral Desert and property to the south, there is not a lot of useable acreage to the east of Meadowcreek. The acreage there is going to take significant fill and will be alongside a road. It will not be residential, and he disagrees with those who think it will be. There is also a power substation at the end of 900 South, and he would not want to live any closer to it than the Meadowcreek residents do. He stated he would not want to build his home on River Road the way it is today. The request is for only one building, and for him, these are the important things to consider.

Council Member Shakespeare commented that this issue has been very difficult for every member of the City Council, no matter which way they vote. They will be voting what they feel and believe is in the best interests of this part of the community. A lot of research and time has gone into this issue. She stated she agreed with the four points Council Member Bunker mentioned, yet she can also see Council Member Pike?s points. She advised she went on line to see what other communities say about rezoning residential land to commercial and they consider whether what is going in is going to compliment the neighborhood and if it is a walkable community. She stated she believed this project?s clientele would be migratory. She stated this building would be only the beginning, and would bring with it more traffic. She stated that office buildings do make good neighbors, except for the traffic they will add. She stated her concern is the cumulative effect of the traffic, and she would vote to deny the request.

Council Member Allen commented she has lived in this neighborhood and hers was one of the first homes there. She stated that all the way down Riverside Drive and all the condo units around there have walls, which are not conducive to a neighborhood fee, and she does not see that as assimilating into the neighborhood. She stated that if the applicants built R-1-10 homes, she doubted they would be for seniors, and the trips per day would be greatly increased. She stated that she loved the commercial in her neighborhood. She stated the businesses locating in the building could be a benefit to a lot of people who live in the area and she does not see the request as a negative.


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Council Member Almquist inquired of Mr. Nicholson if the applicants would be required to build a wall on the east side of the property.

Mr. Nicholson replied that they would be required to build a 6' privacy wall to the east and south.

Council Member Almquist commented that to think the City Council has made up its minds beforehand is not accurate, as he has always kept an open mind. He stated he has watched the traffic pattern at noon at the proposed site and pictured the building and what impact it would have on the neighborhood, and then he pictured the site as residential. He stated that no matter what was built, the traffic in the area would be busier, and even if the property were developed as R-1-10 he would not want to live on that street. Another road will be built when the hospital and Coral Desert expands as the City has to somehow take traffic away from the intersection of Riverside Drive and River Road. When this road goes through, the project will have a minimal impact on traffic. He state the applicants are allowed to do this under the General Plan as the ordinance says in residential areas there are times when it makes sense to have some commercial. He stated while he would be against general commercial, he also would be against rentals and apartments. This could happen on this property. He stated he realized the value of the petition presented but the applicants also have rights.

Mayor McArthur commented he would like to see textures, colors and elevations of the project, as these should be presented as part of the PD presentation.

Council Member Almquist commented that while not speaking for or against the project, he knew the applicants had brought these items in before, including a fly-by. He inquired of the applicants if the building was the same design, elevation and color as that presented before.

Neil Glauser, applicant, replied the materials board is in Mr. Nicholson?s office and this building is the same as the ones presented and denied in January.

Community Development Director Bob Nicholson commented he would run down to his office and retrieve the materials board.

Council Member Bunker inquired if a planting strip would be installed on the east side.

Mr. Glauser replied they would follow the ordinance and do whatever is required.

Council Member Bunker inquired about moving driveways for traffic calming purposes.

Council Member Shakespeare expressed concern for residents of Meadowcreek because they will be surrounded on all sides by very busy traffic. She stated if homes were built and a one-way turn only, the road would be calmer and quieter and easier to access. She stated that safety was an issue and residential development would make a difference on the site.

Council Member Almquist inquired if the entrance on the north side could be eliminated and the existing access changed and the building moved over due to traffic concerns.

Council Member Allen replied that if the entrance off 900 South were eliminated it would eliminate the ability to use the Whatcott parking lot.

Council Member Almquist replied that an additional access would have to be added further up.

Council Member Shakespeare commented that this would open the door for additional buildings.

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MOTION: A motion was made by Council Member Bunker to deny the request based on the previous decision made and the fact that the site is not applicable to Commercial PD zoning.
SECOND: The motion was seconded by Council Member Shakespeare.

City Attorney Shawn Guzman recommended that the motion include language that the request was properly considered by the Planning Commission and City Council because it
constitutes a substantial change.

Council Members Bunker and Shakespeare agreed to add this language to the motion.

VOTE: Mayor McArthur called for a vote, as follows:

Council Member Bunker - aye
Council Member Shakespeare - aye
Council Member Pike - no
Council Member Allen - no
Council Member Almquist - no

The motion failed.

MOTION: A motion was made by Council Member Pike to approve the request as presented and in accordance with the Planning Commission and City Council finding that there was a substantial change in the request.
SECOND The motion was seconded by Council Member Allen.
VOTE: Mayor McArthur called for a roll call vote, as follows:

Council Member Pike - aye
Council Member Allen - aye
Council Member Almquist - aye
Council Member Shakespeare - no
Council Member Bunker - no

The motion carried.

RETAKE ROLL CALL VOTE ON DENIAL:
Because a roll call vote was not taken on the motion which was denied, above, Mayor McArthur called for a roll call vote at this time, as follows:

VOTE: Council Member Bunker - aye
Council Member Shakespeare - aye
Council Member Pike - no
Council Member Allen - no
Council Member Almquist - no.

The motion failed.

Mayor McArthur called for a break. Upon conclusion of the break, the meeting continued.

PUBLIC HEARING/LANDSCAPE STANDARDS ORDINANCE:
Public hearing to consider approval of the landscape standards ordinance.

Mayor McArthur explained that the residential portion was removed from the ordinance.

Community Development Director Bob Nicholson explained that many have been involved in this effort, including the Homebuilders Association, Water Conservancy District, private

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landscaping interests and staff. Because it involves a lot of provisions within the zoning code, he has been involved in it too. The Southern Utah Homebuilders Association has provided changes this afternoon. The ordinance is not retroactive.

City Attorney Shawn Guzman commented that the ordinance does not require landscaping unless it was required at the time the building was constructed.

Mr. Nicholson clarified that single family dwellings have been deleted from the ordinance. The ordinance deals with PD zones, residential and commercial. In the PD Residential zone there are standards how landscaping is to be installed, but the ordinance does not change the area requirement. This goes for multi-family zones as well. The ordinance requires 30% of the area of the lot be landscaped, and this has been the standard for many years and does not change. Concerns have been raised about small parcels of three acres or less, but averaging helps with this. For the past 20 years small parcels have had to have 5% landscaping, so the change is not a big one. Any previously nonconforming use will go the Planning Commission and City Council for determination. The City Manager or his designee have the authority to approve minor changes. Staff?s decision can be appealed to the City Council. Violation of the ordinance is a Class C misdemeanor and could be the basis for revocation of or withholding a business license. Other sections deal with how plants are watered, water efficiency, etc. All healthy trees within 10' of the right-of-way with a trunk caliper of 4" or more shall be preserved during construction unless approved by the Shade Tree Board. Landscaping requirements have been made uniform across commercial zones. There are also additional standards if property is developed or maintained by the City. Projects maintained by the City require a landscape architect.

Mayor McArthur opened the public hearing.

Carol Sapp commented part of the change to the ordinance is putting in a certification requirement for all landscaping professionals, even though they are already licensed by the State. She advised that a new Section 6 is recommended which lists exemptions and more clearly spells out the standards.

City Attorney Shawn Guzman commented that the language as far as when a building permit is triggered is good, but the footprint is problematic. He proposed language that says the Community Development Director makes the decision whether the change triggers the new requirements with an appeal process to the City Council. He advised that minor remodeling would not trigger any changes.

Council Member Pike commented he felt the ordinance was a little over-reaching, as the hospital had to get a permit to put an awning on the back of the hospital, and he would hate to think that as part of that project they would have to change the landscaping. He suggested that perhaps the trigger could be the cost.

Council Member Allen commented that would not work if someone changed the footprint or use of a building and the cost was under $50,000. The hospital already has landscaping and is in compliance.

Council Member Almquist commented the intent of the ordinance is to make sure the City?s arterial roads have landscaping, including the commercial areas. He suggested that perhaps a building in compliance could be exempt from landcasping improvements for a period of 10-15 years.

Council Member Pike suggested there could be several triggers, but the building permit as a trigger is not a good idea.



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Council Member Bunker commented that the building next to Taco Time on St. George blvd. had no landscaping. Retrofitting this building is be a good trigger and example of what needs to have landscaping.

Council Member Allen commented that if a business is already in compliance, it should not have to change anything.

Council Member Bunker inquired if it would be possible to insert a time frame within which the Community Development Director has to respond.

Council Member Pike commented that he would like to make the process as inexpensive and easy to navigate as possible.

City Attorney Shawn Guzman advised that the ordinance could be adopted tonight and the appeal language could be brought back later for approval. With regard to the owner or tenant of property, this dovetails with what the City is doing with the rental ordinance. Responsibility may be spelled out in the rental agreement, but generally the City goes after the property owner because a better response is had.

Community Development Director Bob Nicholson commented that SUHBA supports the average 15' landscape strip provision, with the suggestion that parcels less than three acres be exempt. He advised that the use of potted plants has never been excluded, as long as
they are on private property. There is no credit given for landscaping in the public right-of-way.

Council Member Allen inquired about buildings surrounded by concrete with no opportunity for landscaping.

Mr. Nicholson replied if the property is located in the downtown C-4 zone, they are not required to have landscaping unless they have a parking lot adjacent to a public street or sidewalk.

Council Member Allen commented it would be nice to allow pots for those businesses without any opportunity for landscaping.

City Attorney Shawn Guzman commented that pots could be allowed in the public right-of-way if they did not create a hazard or inhibit pedestrian flow on sidewalks.

Mr. Nicholson advised the proposed ordinance would not prohibit pots; the question is if this would be counted toward the 15'. It would not be if located within the public right-of-way.

City Attorney Shawn Guzman advised the applicant has the right to request permission from the City Council. He commented with regard to the last section suggested by SUHBS, there are some good elements which could be used in crafting some guidelines as far as what might merit exceptions. He stated he did not think at this point they should be incorporated into the ordinance because as drafted they are vague.

Carol Sapp commented it is a good idea to go with multiple criteria to determine the trigger.
With regard to owning and ocupying, it does not say and/or. She stated that SUHBA would like to see the three acre requirement, and the averaging is a great thing.

Jerry Campbell, past president of the AOPC, commented that he and Garry Bedingfield approached the City Council over three years ago about the need for the City to step up and take seriously concerns about irrigation systems. It is now three years later and there is still no resolution. If the ordinance is approved tonight, it will be another year before it is


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July 17, 2008
Page Thirteen

enforced. He inquired if the irrigation section of the proposed ordinance requiring certification and inspection would be passed tonight.

Mayor McArthur commented it is his recommendation that the entire ordinance be moved on and adopted tonight as a place to start, with modifications to it made in the future.

City Attorney Shawn Guzman advised that in order to take this section out, the ordinance would have to be redrafted in order for that section to stand alone.

James Dotson, a local landscaping professional, advised he has been a huge proponent of the landscaping ordinance, and as a former City employee started work on the ordinance. One of the largest issues was plans coming through the City for approval that di not have landscaping and irrigation plans as part of the planning process. He stated he felt the ordinance needed to be passed in order to maintain some clarity and professionalism in the landscaping industry. With regard to the 50% requirement that the ground be covered, the ordinance needs to make sure that it is not de-emphasizing the importance of trees and a percentage needs to be designated for tree canopies on the lot interior in addition to the street tree requirement.

Council Member Almquist suggested that a provision should be made for trees giving them at least a square footage requirement.

Mr. Dotson commented that not counting trees in the 50% requirement is a mistake, as is the requirement that it is unlawful for any person to modify or approve landscaping or irrigation plans without permission from the City, as there are always adjustments made in the field and this should be allowed without have to go to the City for permission. Mr. Dotson continued saying that part of the design process is understanding tree growth. He stated a tree will not grow in a 3' wide parking strip and the strip needs to be a minimum of 4'. He stated the biggest problem was unqualified people putting in systems that need to be precise.

Laura Taylor, Park Planning, stated she wanted to ensure that the City gets a tree canopy as well as ground cover. Leisure Services made recommendations to include some wording requiring one 24" box tree with a minimum of 1.5" caliper for every 4,000 sq. ft. of landscaping area, with a minimum of one tree per property. Another suggestion is to take out the requirement of at least one half of landscaped area sould be covered, is to take out the word required so that it says at least one half of the landscape area to ensure no fallow areas on a site. With regard to James Dotson?s comments about modifying irrigation plans, that is under the maintenance section and intent of that item was so after the plan has been approved someone could not take out trees or making major adjustments to the site plan without approval.

Mark Walter offered a word of caution that the City not micromanage as there are great professionals in all fields doing a good job. He stated sometimes only so much can be done with a site and the proposed ordinance is almost a dis-incentive. He suggested a lot of accommodations so the City can accomplish its purposes without undue burdens on others.

Julie Breckenridge, Washington County Water Conservancy District, advised that the District offers to homeowners a minimum impact fee if they are willing to sign a water conservation easement. Although residential was removed from the ordinance, PD Residential is still covered by the ordinance.

Council Member Almquist advised that while he agreed with Ms. Breckenridge that there might be some pressure by the City to plant more landscaping, plant choice is important and some require much less water than others.



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July 17, 2008
Page Fourteen

Vardell Curtis commented there is a difference between the letter and spirit of the law and the proposed ordinance is problematic. He stated he supported Council Member Pike?s comments about a triggering mechanism and that one size does not fill all. He also expressed concern with the owner vs. occupant provision and that the business license could be in jeopardy. He stated that as a representative for the realtors, they are suportive of anything the City can do to maintain the beauty of the community and it is even more difficult to sell ahome that is run down or blighted. However, there are still ambiguous sections of the ordinance which need discussion.

Council Member Shakespeare suggested that if the City cannot get a hold of the owner, the City could require the tenant to install landscaping and they could then deduct the cost from the rent.

City Attorney Shawn Guzman replied that the City cannot interfere with a contract between an owner and tenant. There are cases where it helps to have the option of contacting either the owner or occupant, but nine times out of ten, the City will go after the owner of the building.

Milton Larson commented that his business is limited in parking and if he wants to remodel, he is shot in the foot as he has zero landscaping. When the business was built, there were no landscaping requirements, and there are several who fall into this category as a result of the Boulevard project.

City Attorney Shawn Guzman clarified that if a building burned down, it would only be held to the standard it was held to before, as long as the footprint was not enlarged. If a building is remodeled, this is where the new ordinance will come into play with its guidelines or triggers. Staff cannot think of everything that might impact parking at a business that is already there.

Mr. Larson asked what if a different building is built.

Mr. Guzman replied if the building were removed or remodeled, it would have to be brought up to current standards. Staff will have to look at every situation and come up with a checklist.

Mr. Larson commented he would hate for landscaping make it so he could not do something with his property.

There being no further public comment, Mayor McArthur closed the public hearing.

Council Member Almquist commented it was too bad the City had to get involved when all it wanted was for things to be nice. He suggested that the City Forester get back in the loop with plan reviews. He stated he liked the appeal process and suggested that backflow devices must be properly installed. Bonding needs to be clarified because there might be a commercial job with no bonding requirements, and it should say where required by the contractor. There should also be some consideration for someone who commits to an entire project yet does not get started for a year, yet the existing trees within 10' of the sidewalk should be protected and maintained. Hydrozones are not the only way to approach different plants planted side by side and cannot be the only thing required.

James Dotson commented it all comes back to a qualified designer. Plant symbols on plans are drawn at 75% of growth.

Council Member Almquist suggested that summer interns be used to do a master commercial survey of landscaping that would ruin with the property.


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July 17, 2008
Page Fifteen

City Attorney Shawn Guzman suggested that the ordinance be adopted tonight with changes worked out at a later date.

Mayor McArthur commented he would like to see the ordinance adopted with concerns and suggestions addressed at a later date.

Council Member Pike questioned whether it would be better to adopt it now or table it and get it right the first time.

City Attorney Shawn Guzman replied that the City Manager would prefer that it be passed and then do some tinkering with it later.

Mayor McArthur suggested the ordinance be passed but hold off implementation for two months within which to address concerns.

Council Member Pike inquired what the point of passing it would be if it is not right and not going to be implemented.

City Attorney Shawn Guzman commented that the City Manager would saw he would like to see the ordinance in place now, and then come back with amendments, rather than leaving it open for more suggestions.

Marc Mortensen advised the next meeting will be held August 7.

City Attorney Shawn Guzman commented that given past higostry he did not know if all the changes would be ready by that time.

Council Member Shakespeare expressed concern with postponing approval of the ordinance because of the length of time it takes and for protection against further

Council Member Almquist suggested it be adopted with an implementation date, review the amendment package on the 7th with a drop dead date on August 21st..

MOTION: A motion was made by Council Member Almquist to adopt the ordinance as presented with an agreement that the amendments be presented to the City Council on August 7th for review, with an implementation date of September 1.
SECOND: The motion was seconded by Council Member Pike.
VOTE: Mayor McArthur called for a roll call vote, as follows:

Council Member Almquist - aye
Council Member Pike - aye
Council Member Allen - aye
Council Member Bunker - aye
Council Member Shakespeare - aye

The vote was unanimous and the motion carried.

Council Member Almquist inquired where the City is in the process of providing a box to check off on business license applications that the applicant is in compliance with state and federal laws with regard to hiring and employment practices.

Support Services Manager Marc Mortensen replied that he did not know but would find out and e-mail Council Members.

Chief Stratton gave an update on recent gang-related police activities and ICE agent status.
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July 17, 2008
Page Sixteen

ADJOURN:
MOTION: A motion to adjourn was made by Council Member Almquist.
SECOND: The motion was seconded by Council Member Allen.
VOTE: Mayor McArthur called for a vote, and all voted aye. The motion carried and the meeting adjourned.




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Gay Cragun, City Recorder