City Council Minutes

Thursday, April 4,2013



ST. GEORGE CITY COUNCIL MINUTES
REGULAR MEETING
APRIL 4, 2013, 4:00 P.M.
CITY COUNCIL CHAMBERS

PRESENT:
Mayor Daniel McArthur
Councilmember Gail Bunker
Councilmember Jimmie Hughes
Councilmember Ben Nickle
Councilmember Jon Pike
Councilmember Gil Almquist
City Manager Gary Esplin
City Attorney Shawn Guzman
City Recorder Gay Cragun

OPENING:
Mayor McArthur called the meeting to order and welcomed all in attendance. The pledge of allegiance to the flag was led by Gail Bunker. Councilmember Hughes arrived. The invocation was offered by Alex Wilkie.

Tim Martin announced that May 2 is the National Day of Prayer. A breakfast will be
held at Dixie State University sponsored by the St. George Interfaith Council, at 8:00
a.m.. Tickets are $10.00.

VICTIM SERVICES:
Alissa Ursey introduced herself and Nadine Davis and advised they will be hiring a third part-time advocate. She advised that they review the previous day’s arrests and corresponding police reports and make initial contact with victims. They also make contact with the prosecuting attorney’s office and attend hearings with the victims. They assisted with 170 orders of protection and stalking injunctions.

Mayor McArthur read a proclamation proclaiming April 9 as National Service Recognition Day in the City and presented it to Carol Hollowell, Director of the Washington County Volunteer Center.

Mayor McArthur announced that the City’s annual fishing derby will be held this Saturday from 8:00 a.m. to 2:00 p.m. at the Tawa Ponds. Concerts in the Park will be held the second Monday of each month.

CONSENT CALENDAR:
Consider approval of the financial statement for February, 2013.

City Manager Gary Esplin advised that revenues are up and expenses are down and the City is in good shape.

Councilmember Almquist noted that the airport is funding itself.

MOTION: A motion was made by Councilmember Almquist to approve the financial statement.
SECOND: The motion was seconded by Councilmember Pike.
VOTE: Mayor McArthur called for a vote, as follows:

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye
Councilmember Pike - aye
Councilmember Hughes - aye

The vote was unanimous and the motion carried.

AIRPORT HANGAR LEASE:
Consider approval of an airport hangar lease agreement with Roger Larsen.

City Manager Gary Esplin explained the lease is for Hangar 211, an existing hangar which Mr. Larsen is purchasing from the previous owner. The lease meets all requirements and he recommended approval.

MOTION: A motion was made by Councilmember Bunker to approve the lease.
SECOND: The motion was seconded by Councilmember Almquist.
VOTE: Mayor McArthur called for a vote, as follows:

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye
Councilmember Pike - aye
Councilmember Hughes - aye

St. George City Council Minutes
April 4, 2013
Page Two

The vote was unanimous and the motion carried.

Mayor McArthur invited several Scouts and students in the audience to introduce themselves.

AGREEMENT:
Consider approval of a supplement to the Quality Excavation airport paving and lighting agreement.

City Manager Gary Esplin explained this project, hopefully the final one, is to help with drainage issues with regard to the apron at the airport, in the amount of $97,672.06. There are still some remaining federal funds which can be used to help cover this project, along with the City’s match.

MOTION: A motion was made by Councilmember Pike to approve the agreement.
SECOND: The motion was seconded by Councilmember Bunker.
VOTE: Mayor McArthur called for a vote, as follows:

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye
Councilmember Pike - aye
Councilmember Hughes - aye

The vote was unanimous and the motion carried.

LOCAL CONSENT:
Consider approval of a request for local consent for a single event alcohol permit. Habitat for Humanity of Southwest Utah, applicant.

Mike Burse, Executive Director of Habitat for Humanity of Southwest Utah, explained they will be holding a fundraiser and awareness event for affordable housing on May 11 from 6:00 p.m. to 9:00 p.m. They are also requesting a waiver of fees.

MOTION: A motion was made by Councilmember Bunker to approve the local consent and waive any fees.
SECOND: The motion was seconded by Councilmember Hughes.
VOTE: Mayor McArthur called for a vote, as follows:

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye
Councilmember Pike - aye
Councilmember Hughes - aye

The vote was unanimous and the motion carried.

FINAL PLATS:
Todd Jacobsen presented the final plats for Royal Pine Estates Phase 3, Mulberry Estates Phase 1, Sun Valley Estates Phase 12, and the Ledges Parkway roadway dedication plat.

City Manager Gary Esplin commented that with regard to the Ledges roadway dedication plat, the State is involved because of U-18, the overpass, and landscaping within the right-of-way.

Todd Jacobsen commented that the road is built to City standards and staff is working on an agreement for the Ledges to maintain the landscaping within the medians.

Councilmember Almquist suggested that zoning be marked on the plats.

City Attorney Shawn Guzman replied that this might be problematic as zones do occasionally change, however, he would look at this..

MOTION: A motion was made by Councilmember Almquist to approve the plats as recommended.
SECOND: The motion was seconded by Councilmember Hughes.
VOTE: Mayor McArthur called for a vote, as follows:

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye

St. George City Council Minutes
April 4, 2013
Page Three

Councilmember Pike - aye
Councilmember Hughes - aye

The vote was unanimous and the motion carried.

FINAL PLAT AMENDMENT:
Wes Jenkins presented the amended final plat for Trebruk Estates Phase 2 Amended. The purpose for the amendment is to show a minimum finish floor elevation of 2,634, which is two feet aboce the current base flood elevation. This will allow the applicant to construct a basement. No other changes are proposed. This change has been approved by FEMA. The applicant will be advised to obtain flood insurance.

MOTION: A motion as made by Councilmember Pike to approve the final plat and authorize the Mayor to sign the plat.
SECOND: The motion was seconded by Councilmember Nickle.
VOTE: Mayor McArthur called for a vote, as follows:

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye
Councilmember Pike - aye
Councilmember Hughes - aye

The vote was unanimous and the motion carried.

PRELIMINARY PLAT:
Wes Jenkins presented the preliminary plat for Shadow Hawk Townhomes. The applicant is required to provide 3,000 sq. ft. of recreation area and open space. Two parking spaces per unit is required. Some of this area was part of the Las Hurdes drainage study and a revised drainage study will need to be provided. Staff is requesting that the three guest parking stalls along Las Hurdes Drive be increased by two feet to 18 feet to allow more room for vehicle parking. This will eliminate any overhang on to the sidewalk.

MOTION: A motion was made by Councilmember Pike to approve the preliminary plat.
SECOND: The motion was seconded by Councilmember Almquist.

Wes Jenkins advised that the units are to be individually owned and there will be a HOA.

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

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye
Councilmember Pike - aye
Councilmember Hughes - aye

The vote was unanimous and the motion carried.

PRELIMINARY PLAT:
Wes Jenkins presented the preliminary plat for Deserts Plateau Subdivision with a density of 2.7 dwelling units per acre. The project sits in two zones. They are doing R-1-10 of less density. They were going to put in a regional trail as part of the project, but after meeting with the applicant and Parks personnel, it was decided that a trail is not the best idea. The trail will be placed along Desert Edge Drive. The project will also be divided up into a number of phases, and as each plat comes in an area will have to be dedicated equal to 15% of the plat as open space. Lots that front along the 66' road will have to have circular driveways. The open space is designated in the general plan and does not show on the preliminary plats but will be shown on the final plats.

City Manager Gary Esplin advised there are thousands of acres involved in this plan and a development agreement was entered into years ago as part of the airport development. As final plats for phases come in, the master plan for the development will be brought in too so that the City Council can see how it all fits in. It has been a long process to get to this point.

Wes Jenkins advised that while it may seem the project is in the middle of nowhere, the utilities are in place. He then displayed elevations.


St. George City Council Minutes
April 4, 2013
Page Four

MOTION: A motion was made by Councilmember Hughes to approve the preliminary plat subject to staff’s comments.
SECOND: The motion was seconded by Councilmember Bunker.
VOTE: Mayor McArthur called for a vote, as follows:

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye
Councilmember Pike - aye
Councilmember Hughes - aye

The vote was unanimous and the motion carried.

CONDITIONAL USE TIME EXTENSION:
Consider approval of a one year time extension of a conditional use permit to allow for additional pole height up to 90' for power transmission poles in the vicinity of 3050 East Street and running in an east-west direction generally behind Walmart, Home Depot, Albertson’s and Big Lots stores. Rocky Mountain Power Company, applicant.

City Planner Ray Snyder explained that a conditional use permit for a master transmission plat was approved in 2006, and amended in 2012. The applicant is asking for an increase the pole height from 70' to 90', and to move the poles further south and reduce the number of poles by two. A time extension is required for a conditional use permit unless it can be shown that substantial work has been done or it has been impossible to diligently pursue completion of the project. The applicant explained that engineering design work and right-of-way acquisition has delayed the ability to begin construction. Construction will begin in October, and the Planning Commission recommends approval.

MOTION: A motion was made by Councilmember Almquist to approve the extension.
SECOND: The motion was seconded by Councilmember Hughes.
VOTE: Mayor McArthur called for a vote, as follows:

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye
Councilmember Pike - aye
Councilmember Hughes - aye

The vote was unanimous and the motion carried.

PUBLIC HEARING/ZONE CHANGE/ORDINANCE:
Public hearing to consider approval of a zone change from Agricultural A-1 and A-20 and R-1-12 to R-1-10 Single Family Residential on 23.28 acres generally located on the west side of 3000 East Street and north of 2000 South Street. Judd Palmer and Karen Tormey, applicants.

City Planner Craig Harvey displayed a zoning map, and explained that in 2011 the City Council rescinded a development agreement in order for Washington County School District to build a school in the area. The applicant has come back with an application to change not only his portion but Tormey’s portion. The general plan shows the area as low density residential. A number of area residents opposed the request. The Planning Commission recommends unanimously that the Tormey parcel remain as is, but recommends approval of the remainder of the request. Mr. Palmer has written a letter stating his reasons why all of the property should be zoned R-1-10. Staff supports either decision. An e-mail has been received from a Mr. Akins of California opposing the zone change.

Jerry Madsen with Alpha Engineering explained that the Water Conservancy District encourages small lots with smaller impact fees, there is a play field at the nearby school so large lots are not needed, and the proposed density is well below the City’s master plan.The 60' road will also provide a buffer between the agricultural area and the subdivision. By keeping the area zoned R-1-12, the owner will lose her profit.

Mayor McArthur clarified that the Water Conservancy District is not encouraging smaller lots - they are encouraging less landscaping. He then opened the public hearing.

Hela Jackson advised he would be impacted the most, and he was curious why the applicant wanted the zone change. Some of the neighbors are fearful that

St. George City Council Minutes
April 4, 2013
Page Five

smaller homes will be built and depreciate the value of nearby homes. He inquired if there was a good reason to downsize the lots, and if there was any plan to save the pine trees. He stated he was not necessarily opposed to the request if there was a good reason to downsize.

Milton Larsen advised that he owns property to the north, and only 30' of the road will be completed with this project.

City Manager Gary Esplin advised that two lanes will completed.

Milton Larsen advised there is only a partial road on the school side now, and the small piece of 3000 East in front of Dave Young’s house is too small for two cars now.

Mayor McArthur advised there will be funds in next year’s budget to widen that out by September.

Milton Larsen commented that the only access to this project will be two unfinished roads, and there needs to be at least one road that is completely finished that accesses 3000 East. He stated that even the access to Serenity Hills off 2450 is not a finished road. Out of every road feeding into there, there is no road where both sides have been finished, and this one is not going to be finished either. The other concern is with irrigation. The fields below the school do not drain well, and flood irrigation methods will still be used. These farmers do not want to be liable for any damage, as they can’t help where the water will be absorbed. He inquired what their liability would be.

Mayor McArthur replied that water cannot run out into the street, and development standards cannot be changed.

Milton Larsen inquired why, in such a large subdivision, that there is not another street accessing 3000 East.

City Manager Gary Esplin replied that the plat is not under consideration - this action is for a zone change. Staff is trying to limit access on 3000 East. The water issue has no bearing on the zone change. The entire subdivision will have to deal with the underground water, the high water table, and the alkali, and all this will have to be taken into account when the plats come in for approval.

Milton Larsen inquired who would pay for the other half of the road when it was built. He stated he has up to 70 animals and an open ditch, and children can crawl through his fence. When the road goes through, this will open it up to all kinds of traffic that is not there now.

Mayor McArthur replied that Mr. Larsen would not have to change anything.

Milton Larsen inquired if there were plans to fix the drainage ditch.

City Manger Gary Esplin replied that it is under design now. The City has budgeted funds to do up to the corner and next year will go all the way down 3000 and widen it out.

Milton Larsen commented he felt there should be a secure wall, not just a wire fence, between properties. He stated the only reason there was R-1-10 zoning in this area was because there was a trailer park there at one time, but everything else around in the area was zoned half acre or larger.

Councilmember Hughes inquired of Mr. Larsen if it made a difference to him if the zoning was R-1-10 or R-1-12.

Mr. Larsen replied that R-1-10 zoning means more houses and roads, however, whatever is done will change the dynamics.

City Manager Gary Esplin advised that R-1-12 zoning does not allow large animals.

Natalie Larsen stated she felt the zoning should be R-1-12. It is only fair to allow one large animal for lots that back up to lots with 90-100 large animals. She stated that a buffer would make for a better neighborhood. She stated that traffic is a problem through the Graystone Subdivision, and there should be a road out of the proposed subdivision to 3000 East.

City Manager Gary Esplin advised that the partial road width of these roads is the same as a City street, and is enough for two lanes.


St. George City Council Minutes
April 4, 2013
Page Six

Natalie Larsen advised the half road width is not wide enough if cars are parked along it, let alone a whole new subdivision. There will be a lot of pedestrian traffic too to the school.

City Manager Gary Esplin advised the different in zoning is four additional houses. The discussion should be about the zone change, not the road layout, or the development. The question is whether R-1-12 is a better buffer to the adjoining properties. When the applicant comes in with the final plat the City Council can then look at the road plan and determine if they want a road hooking to 3000 East, and they can ask that the roadway to the north be made wider. The City’s policy is that there has to be a minimum of 25' of asphalt.

Councilmember Hughes inquired of Ms. Larsen if it made a different to her if the property was zoned R-1-10 or R-1-12, since neither allows for large animals.

Ms. Larsen replied that she would like to see it remain R-1-12.

Donald Rawlings commented his main concern is the narrow street by Dave Young, and five trees should be taken out to widen the road before someone drives into the ditch.

Mayor McArthur replied that by September the road will be widened. There being no further public comment, he closed the public hearing.

Councilmember Hughes commented that he did not know if larger lots would solve the problem of putting homes next to agricultural property or lessen complaints about the effects of living next to large animals. All concerns expressed are legitimate, but he did not know if R-1-12 zoning would solve the problems that will come from living next to ag property. He stated he was in favor of large lots, and not all lots needed to be 10,000 sq. ft.

Councilmember Bunker commented she could not see the difference between the two zones, as it was just four homes. She said she has noticed that larger lots are not kept up as well as and property values are better on manicured lots, which are usually smaller.

Councilmember Almquist commented that most of Bloomington Hills is zoned R-1-8 or R-1-10, and most are larger. The whole dynamics of the area was changed when the school was built, and another school is planned for the area. Eventually the property to the north will have homes on it too, and traffic will be increased. Homes around schools are fairly typical and is a smart move. He clarified that there would be five additional homes with R-1-10 zoning.

Councilmember Hughes commented that Little Valley is an area where the City has tried but is losing the battle to keep larger lots.

Councilmember Pike commented that times are changing, and there is yet to be another elementary school, and probably a high school, in the vicinity. There are hundreds of acres still to be developed in the area.

MOTION: A motion was made by Councilmember Pike to follow the Planning Commission’s recommendation and approve the zone change for the Palmer parcel, and deny the zone change request for the Tormey parcel.
SECOND: The motion was seconded by Councilmember Hughes.
VOTE: Mayor McArthur called for a roll call vote as follows:

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye
Councilmember Pike - aye
Councilmember Hughes - aye

The vote was unanimous and the motion carried.

PUBLIC HEARING/ZONE CHANGE/ORDINANCE:
Public hearing to consider approval of a zone change from Open Space to Agricultural A-1 on 1.5 acres generally located at 2000 East on 2800 South Street. Kevin Ence, applicant.

City Planner Craig Harvey explained that the applicant wants to build a home for his own use. The site where the home will be built is out of the 100 year flood plain and flood channel.
St. George City Council Minutes
April 4, 2013
Page Seven

Mayor McArthur opened the public hearing. There being no public comment, he closed the public hearing. He then re-opened the public hearing.

Phillip Hutchings commented there were safety issues around this property. This is the only spot on River Road where there is no sidewalk or curb or gutter. There are many close calls here every morning for joggers and bikers.

City Manager Gary Esplin commented that every year the City approves funds to re-mediate dangerous sidewalks, and this might be a good spot to use those funds.

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

MOTION: A motion was made by Councilmember Bunker to approve the zone change.
SECOND: The motion was seconded by Councilmember Almquist.
VOTE: Mayor McArthur called for a vote, as follows:

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye
Councilmember Pike - aye
Councilmember Hughes - aye

The vote was unanimous and the motion carried.

HEARING ON APPEAL OF REVOCATION OF BUSINESS LICENSE:
Appeal of the revocation of a business license for Mike’s Smoke Shop.

Deputy City Attorney Paula Houston and the attorney for Mike’s Smoke Shop, Ryan Holdaway, both submitted documents and exhibits as evidence supporting their positions on the revocation of the business license for Mike’s Smoke Shop. Both attorneys agreed to proffer the evidence rather than call witnesses.

Ms. Houston presented the City’s position: Mike’s Smoke Shop is located at 1973 W. Sunset Blvd. and had a City business license; it was investigated for selling “spice”; product was purchased from the store on several occasions; the State Crime Lab tested the product and identified it as an analog of a controlled substance; they knew people were ingesting/smoking it; it was hidden from view so customers had to ask for it. Based on all this information the City issued a letter from the Business License Officer revoking the license.

Ryan Holdaway presented Mike’s Smoke Shop’s position: stated they did not dispute a significant portion of the facts as presented, and not saying that it did not happen as it did; questioned whether the burden of proof and the level of evidence has been met; presented a statement from a professor that said in his opinion XLR-11 is not an analog of a controlled substance; he also argued that to be constitutional the law must be applied like many of the federal courts have applied the federal law; he said the product wasn’t hidden, the store had been broken into and product stolen; and the owner and manager believed that what they were doing was in compliance with the law.

Councilmember Almquist inquired of Mr. Holdaway if AM694 or XR11 or any of the products or early renditions were meant to be smoked.

Mr. Holdaway replied he did not know who Mr. Almquist was referring to or their intention, but pharmaceutical companies are not preparing the product to be smoked.

Council member Almquist discussed with Mr. Holdaway the ethics of trying to use a loop hole to sell the product.

Ms. Houston commented that the state law was changed in the 2012 legislative session, to specifically eliminate a required two prong test like the federal governments. She summarized the City position saying, the law is very clear and it is reasonable to follow it as written. To revoke the license there has to be evidence to make reasonable minds agree. The lab report says that XLR11 has a chemical structure substantially similar to a controlled substance. The chemists who analyzed the product are certified. It is reasonable to agree with the State Lab that the product is a structural analog and it is illegal for it to be sold or possessed with the intent to sell. It is reasonable to believe the employees and owners knew it was being ingested and, because the business was not being broken into during the day and the product could easily be locked in the safe at night if it was their intent to protect the product from being stolen, it is reasonable to believe they intentionally

St. George City Council Minutes
April 4, 2013
Page Eight

hid the product from law enforcement. Under the business license revocation law, there is no requirement for there to be a conviction in a criminal court, only reason to believe that a criminal law was violated. Based on the evidence presented, there is reason to believe that the law was violated.

Mr. Holdaway said until such time as legislation is passed and a clear line drawn, the owners of the smoke shop cannot suffer revocation of their license. He said the product was not an analog of a controlled substance, the law on analogs is not clear, that the law is unconstitutional, and therefore the City should not revoke the license until after a criminal conviction.

City Attorney Shawn Guzman advised the City Council to take their time to review the packets and he suggested the matter be addressed in another City Council meeting. He advised that in the meantime the business will remain open.

APPOINT MAYOR PRO TEM:
Mayor McArthur announced that he will not be able to attend the May 2 City Council meeting. He recommended that Jon Pike be appointed as Mayor Pro Tem for that meeting.

MOTION: A motion was made by Councilmember Almquist to appoint Jon Pike as Mayor Pro Tem for the May 4, 2013 City Council meeting.
SECOND: The motion was seconded by Councilmember Bunker.
VOTE: Mayor McArthur called for a vote, as follows:

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye
Councilmember Pike - aye
Councilmember Hughes - aye

The vote was unanimous and the motion carried.

APPROVAL OF MINUTES:
Consider approval of the minutes of the City Council meeting held March 21, 2013.

MOTION: A motion was made by Councilmember Almquist to approve the minutes as presented.
SECOND: The motion was seconded by Councilmember Nickle.
VOTE: Mayor McArthur called for a vote, as follows:

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye
Councilmember Pike - aye
Councilmember Hughes - aye

The vote was unanimous and the motion carried.

ADJOURN TO CLOSED SESSION:
MOTION: A motion was made by Councilmember Almquist to adjourn to a closed session to discuss potential litigation.
SECOND: The motion was seconded by Councilmember Hughes.
VOTE: Mayor McArthur called for a roll call vote, as follows:

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye
Councilmember Pike - aye
Councilmember Hughes - aye

The vote was unanimous and the motion carried.

RECONVENE AND ADJOURN:
MOTION: A motion to reconvene and adjourn was made by Councilmember Almquist.
SECOND: The motion was seconded by Councilmember Pike.
VOTE: Mayor McArthur called for a vote, as follows:

Councilmember Bunker - aye
Councilmember Almquist - aye
Councilmember Nickle - aye

St. George City Council Minutes
April 4, 2013
Page Nine

Councilmember Pike - aye
Councilmember Hughes - aye

The vote was unanimous and the motion carried.




_______________________________
Gay Cragun, City Recorder