All present included Mayor Hart, Council Member Mehr, Council Member McDonald, Council Member Roberts, Council Member Densley, and City Recorder Kari D. Jimenez.
STAFF: City Manager/Attorney Dale Coulam, Director of Finance Wally Ritchie, and Parks and Recreation Director Benny Sorensen.
EXCUSED:   Council Member Johnson

Audience: Ellen Nathan, Fritz Sawyer, Dan & Jan Brown, Judith Kapuscinski, Lisa Rutherford, Jon Graf, Becky Warren, Delores Osborn, Claudette Larsen, Gary & Debbie Pendleton, Dave Appel, Mary Beth Beck, Robert Beck, Kathy Barth, Rich Bryant, Mike Burkley, Joseph Witham, Lance Anderson and others who did not sign in.

A.	Acknowledgement of Quorum

Mayor Hart acknowledged there was a quorum present and indicated that Council Member Johnson was excused.

B.	Flag Salute

Council Member McDonald led the Flag Salute

C.	Invocation

Council Member McDonald gave the Invocation

D.	Disclosures

Council Member McDonald referred to agenda items 4)A&B regarding the RV Resort and stated that the applicants have used his shops for servicing their vehicles.  There were no other disclosures or conflicts of interest with items on this meeting's agenda.

A.	Presentation of an art feature

Mayor Hart referred to a presentation of a feature possibly coming into the City on Highway 91 and asked the Arts Council to be at the City Council meeting tonight.  Kreg Harrison has lived in Ivins City since 2012 and in Washington County for approximately 10 years. Over the last six (6) years he's been backpacking and creating sculptures based on the bristlecone pinetrees located in Southern Utah, Nevada and California. A documentary was started 6 years ago about what he does.  In 2012, two (2) years into the project, he lost his son, KJ, in a drowning accident. KJ had a job when he was in high school to straighten pieces of bailing wire for him for his sculptures.  He has been trying to determine what to do with the pieces KJ straightened.  He has found that by spot welding these pieces of bailing wire, it can result in a sculpture that looks similar to the bristlecone pine.  The individuals creating the documentary would like to film the installation of the piece he is about to do. He felt that this piece needs to be in a public setting and would like to see the piece in Ivins, Santa Clara or somewhere in Southern Utah. Mayor Hart commented the concept of the bristlecone pine is that they are ancient, dating back 2,000 to 3,000 years.  Kreg Harrison clarified that approaching 5,000 and more years and are the oldest living organisms on earth.  Mayor Hart stated the sculpture represents enduring hardship and conditions. The sculpture recently placed at Snow Canyon Parkway and Snow Canyon Drive is a tribute to Ivins City past and present and it's reflective of a history of sacrifice. The notion of this is at some point we need to place an entry feature into the City on Highway 91, or in another roundabout. There hasn't been a discussion about finance or how that would work at this point.  This evening's presentation is of the concept and to be reviewed by the Arts Council and City Council to see if that is something they would like to do.  Kreg Harrison indicated that if anyone has dealt with an untimely or out of sequence death, this sculpture is the essence of that and the title of the sculpture will be Infinite Hope.

Mayor Hart stated that the action that would follow, would be to have the Arts Commission look this over with Mr. Harrison.  Judith Kapuscinski representing the Arts Commission indicated that she wanted to make sure this flowed through the Arts Commission and was in line with the Arts Master Plan.

B.	Department Reports: Parks and Recreation & Public Safety

Parks and Rec Report

Public Safety Report

Benny Sorensen reported that they are organizing basketball teams. There were baseball tournaments last month and soccer tournaments this month. The Christmas decorations are up. They are starting the pickleball courts this week in Desert Rose and the Run Run Reindeer 5k will be held on the morning of December 24, 2016, with Chick-fil-A being one of the sponsors.

Bob Flowers submitted his report electronically and reported that for the first time, they only have one (1) dog in the animal shelter.  Officer Matt Stoker goes the extra miles for the citizens and reported that he was working graveyard recently and observed something suspicious which resulted in the arrest of a burglary suspect involved in several possible burglaries in the county.  He reported that EMS billed $142,000 with the new billing service.  He indicated that Ivins Fire Department has been responding to fires outside of Ivins area and suggested that the City may want to have a discussion with other agencies regarding that before the next fire season.  Mayor Hart referred to the EMS billing and inquired how that number compared to previous months.  Bob Flowers replied that the billing is up and the new billing company is also a collections agency.  They will have a better idea in a couple of months as to what's being billed and collected and he'll report back to the City Council at that time.  Council Member McDonald referred to the theft that took place at the Rocky Vista University school construction site.  Bob Flowers indicated it's an open case and will remain open until solved. Mayor Hart inquired if the Trap Neuter Release program is ongoing and if so, if the numbers were starting to drop.  Bob Flowers stated that the program was ongoing and that it takes awhile for the populations to cycle through and that there are a few populations that are being monitored.

C.	Planning Commission Report

Dale Coulam reported that the Planning Commission reviewed a Concept Plan report for a property on 400 West and Center Street.  They approved their meeting schedule for 2017.

Lisa Rutherford submitted a Citizen Comment and referred to the directional signage at the roundabout where the new sculpture is located.  The City has placed a beautiful sculpture there and felt that the directional signs are too prominent and detract from the sculpture.  She referred to the roundabout at the entrance of the City with the horse sculptures and stated that there are no directional signs at that roundabout and inquired if there's a better idea for the newer roundabout.   Mayor Hart indicated that he will talk to the Public Works Director/City Engineer, Chuck Gillette.

A.	Public Hearing on the Planning Commission’s recommendation to deny a proposed Zone Change of 24.52 acres from RA-1 Residential/Agricultural to RV Resort located on the south side of Highway 91 at approximately 100 West - Jon Graf, Applicant; Jon Graf, Owner

Mayor Hart stated these are the way the council receives information to help make an educated decision on issues like this.  This item has major concerns on both sides and he asked individuals that were present to make specific comments as to the zone change.  Mayor Hart opened the Public Hearing.
Dale Coulam referred to a property map between 200 West and Main Street on Highway 91 and identified the Pendleton property which is approximately 14.5 acres.  He also identified the Graf property which is approximately 24.5 acres.  He stated that the Pendleton's home is approximately 180 feet from the property line according to the county records and to the south of the property is BLM (Bureau of Land Management) property. Access to the Graf property would be off of Highway 91.  He stated that although discussion on the property has been discussed previously as it relates to the land use, this is the new record being created on the zone change.  He referred to Ivins City Code 16.05.111, a copy of which is available by request through Ivins City Hall, regarding what the City Council is to consider when approving a Land Use ordinance, Zoning Districts Map or Official Map amendment.  Items 1, 2 and 6 are very similar, talking about whether it's in the general welfare of the City residents, does it provide a benefit to City residents and would it benefit the community.  Item 3 is a factual issue for staff regarding infrastructure and utilities to the applicant's piece of property.  There are utilities in the area that are accessible and can be connected at applicants cost.  There is no cost to the City for those facilities and services. Item number 4 relates to the compatibility of the use with nearby and adjoining properties.

Gary Pendleton resides at 227 W. Old Highway 91 and has lived there since 1986 or 1987. The General Plan has already been changed and he filed an Administrative Appeal.  He took the position that the City was duty bound to apply the ordinance and to consider all of those factors and make findings regarding the compatibility of the use and that was all in connection with the amendment of the Land Use Plan, which has already been accomplished.  He referred to Ivins City Code 16.05.101, a copy of which is available by request through Ivins City Hall, entitled Effect of the General Plan and stated that no amendment to a land use ordinance, zoning district maps or official map may be recommended by the commission or approved by the City Council unless the amendment is found to be consistent with the General Plan.  The General Plan has recently been changed.  The Planning Commission recognized the fact that there is a pending lawsuit that's going to be adjudicated eventually.  He has a license to practice law and he's not going to run out of any money.  They are going to adjudicate that.  They filed a Motion for a Stay in the District Court and it's scheduled before the District Judge on January 6, 2017.  In response to their Application for a Stay, based upon their challenge to the amendment to the underlying General Plan, the City responded by filing a document in opposition which says "the City Council could, in theory, approve the amendment to the General Plan, even if it is found after consideration of the criteria, that the neighbors would be harmed, that the land use was unnecessary or incompatible and that it was not in the public interest."  He thought that he has the right to challenge a City Council or a majority of a City Council that thinks that that's the parameters, the power that they enjoy.  He thought that he not only had a right to do that, he thought that he's duty bound to do that and he's going to challenge it in court because starting with Article 39 of the Magna Carta and the 5th Amendment to the Constitution of the United States and in Article 1, Sections 9 of the Utah State Constitution, we have Due Process rights and if the City is going to have a plan, if the City is going to enforce the Zoning Ordinance, then it's going to be according to law that takes into account their (the Pendleton's) interests because they're part of Ivins community.  He asked the City Council to follow the recommendation of the Planning Commission and not to take any further action implementing this change to the Master Plan, which in the Pendleton's judgment was made without consideration of the approval requirements required by the City Council's own statutes and he is offended by the concept that the City Council would take the position that it can change the General Plan even if it harms them, even if it's not in the public interest, even if it's not compatible with the existing General Plan.  He thinks that's asinine.  He asked the City Council to follow the recommendation of the Planning Commission and to not take any further action to implement the change to the General Plan until it can be adjudicated in court.

Dale Coulam clarified that the City Council did not take the position that Gary Pendleton just stated. The attorney retained by the City took that position to describe the definition of the word "consider" and that was the context of that legal brief that was filed with the court. Gary Pendleton from the audience stated "that's right."  Jon Graf resides at 1854 North Serenity Drive in St. George and is asking for the zone change.  His family owns that property and has owned it for a 100 years.  They have farmed that property and in trying to figure out what to do with it, they need to either sale the property or develop it.  They have come up with an idea to develop and use the property for an RV Resort.  He has spoken with people in the community and the comments he has received have been positive.  There is nowhere in the area for motor coaches or trailers.  Ivins is a destination place and there are a lot of families that come to town for football, soccer and other reasons. An RV Resort would be a good opportunity for people to stay the night.  The Planning Commission and City Council have worked hard to make sure that the RV Resort would be something that would be a positive influence on the city.  He has spoken with the owners of Movara Spa and they were positive about there being an RV Resort there.  He has spoken with Tuacahn and was told having RV Resort would be a wonderful opportunity to partner with Tuacahn for people coming in from out of town.  He clarified that the project would not be a trailer park.  It would be an RV Resort.  He received an email from an individual that heard he was building an RV Resort in Ivins.  That individual sold his home in the Citadel subdivision, would love to stay at the RV Resort in the winter and thought it was a good idea.  There has been a lot of negative comments but he wants the project to be positive for the community.  They own the property and he feels it's their right to exercise their property rights as owners.

Mariah Perez resides at 285 Fitness Way in Ivins.  She stated that it depends on who you talk to about the project because there are differing opinions.  She was concerned that the land use change could potentially be undone in the litigation and thought it's worth waiting to see what happens with the litigation.  She understood that Jon has spent a lot of time on this project and doesn't doubt that he's trying to make it nice.  She hoped that whatever happens, everyone can be happy and move forward. Mayor Hart indicated that he hasn't gotten a really clear picture of what's more objectionable about this concept and what might have happened with the land use that was there before, which was commercial.  Mariah Perez clarified that Movara is far enough away that they don't notice them.  She referred to a 30 foot setback and indicated that isn't much of a buffer and a commercial building would not have been that close to the property line.  There would have been commercial hours that were appropriate for coming and going and it didn't necessarily have to be commercial because it's still zoned residential.  They've never had an issue with there being kids on trampolines or having noise from that.  It's the hours of operation and how much of the land is going to be used for the RV Resort.  As an example, Movara's employees come and go but the RV Resort feels transient and not comfortable.  Mayor Hart inquired if she felt that the RV Resort would undo value in her property and comments about views being an issue.  Mariah Perez stated she likely won't sell her home but she felt that the value to her personally is affected.  Deborah Pendleton referred to the views and indicated that it depends on how view is defined.  She wasn't concerned about obstructing her view of Pine Valley Mountain and the overall big view.  She doesn't want to look off of her porch or through her bay window at a whole row of RVs.  Gary Pendleton indicated that when they went before the Commission they said that they knew they made some accommodation for a transition zone for other people and they would just like to be treated the same way.  The City Council encouraged them to meet with the Graf's.  What they had proposed to the Graf's was the Pendleton's wanted to come off of the property at a 90 degree angle and leave the Graf's with a 6 acre piece that would still be big enough that it could be in green belt or subdivided for homes.  The Pendleton's weren't hell bent to say they wanted a transition zone all the way down their common boundary.  All they wanted was 300' between their home and the RV Park.  Right now they have approximately 150 feet from where the RV Park is proposed to be.  They met with Graf's and the Graf's were concerned with losing 30 spaces if there was a transition zone the way he proposed.  They adjusted the transition zone line so that it would only deprive the Graf's of 22 spaces and still give the Pendleton's a 300 feet from the property line just not as far south.  He thought they were going to resolve it but then there was silence.  Mary Beth Beck resides at 1743 Wintook Drive in Ivins.  She pays taxes and bought a lot in Ivins.  She wouldn't want an RV Park next to her and wouldn't want it in the City.  When you drive up Highway 91 from Santa Clara into Ivins, the first thing that someone would see would be 150 to 180 RV spots on the side of the road.  She inquired if that's what they want for the community and stated she didn't think so.  She hoped that the City Council takes that into consideration and that they pay as much attention to rest of the residents of Ivins want as they do to the one man who has this piece of property.  She pointed out that Jon Graf is not going to be living next to or on that property.  He lives in St. George.  He's not going to be looking at it but the rest of Ivins residents will be.   Lisa Rutherford resides in Ivins and stated that her concerns are the same as they were when this first came up.  She was concerned about traffic and had a problem with huge vehicles on narrow roads with cyclists on the roads.  She saw cyclists and big rigs as incompatible.  She supported the need for the case to be resolved in court before proceeding. Nicole Graf resides at 1854 North Serenity Drive in St. George.  She referred to the remarks regarding due process and rights and indicated that they have gone through the proper channels to do this.  Building an RV Resort would be something that they could do with their own property and make a living from it.  The City has done an excellent job working with them.  She stated that they (the Graf's) have gone through the process of obtaining a feasibility study to find how many spaces are needed to pay for the project due to the City requiring a high end resort.  Regarding cyclists, a lot of people that RV, also ride bikes and she doesn't see a compromise there.  She's a cyclist and has been hit on her bike so people are hit in other situations other than by RV's.  She understood that Highway 91 is an entrance into Ivins but it's not as heavily used as the entrance on Snow Canyon Drive.  She hoped that the City Council would approve the zone change so that they can move forward with their project. Richard Bryant resides at 1298 Wisteria Court in Ivins. He has attended a lot of the meetings and has followed this closely.  In his opinion, the City Council has to allow for the adjacent property owner, some privacy for them.  He stated that it's not a good location at the entrance and he would like to see a different use for that property that can be developed in another manner.  The ordinance that was proposed by the Planning Commission went before the City Council and morphed into something different.  Individuals were concerned about collecting a transient room tax, yet 30% of the sites allow individuals to stay for 180 days.  That defeats the purpose of the transient room tax.  There are a lot of developments that are going in and he would like the City Council to consider denying this change.

Kathy Barth suggested that if the City Council is determined to override what the Planning Commission has been recommending each time, the City Council should consider a transition zone.  She did not want to see a precedence starting now.  If the City Council is determined to have an RV Resort on this property, she would like the City Council to honor the adjacent owners' property rights and require a transition zone.  There being no other comments, Mayor Hart closed the Public Hearing.

B.	Discuss and consider approval of Ordinance No. 2016-28, an Ordinance of Ivins City, Utah, approving a Zoning Districts Map Amendment from RA-1 to RV Resort for the property located on the south side of Highway 91 at approximately 100 West

Staff Report

Ordinance denying amendment

Ordinance approving amendment

Planning Commission Minutes

Map

Dale Coulam stated he drafted two (2) versions of the Ordinance.  One ordinance follows the Planning Commission's recommendation and one follows what the majority position of the City Council has been previously.  The Planning Commission felt that it would be untimely to consider or approve a zone change at this time because of the pending appeal.  It could be messy if the zone change was granted and then the land use overturned on appeal.  That was the basis for their denial.  They asked a question as to whether timing was a legitimate ground for not granting a zone change at a particular point in time.  He had been to Land Use conferences where a panel of attorneys said "yes", timing could be a ground for denying an application for a zone change.  On the vote for the Land Use change, the City Council was split between the different zones.  The only way to justify a transitional zone now is to keep a portion of the property zoned at RA-1 and make a finding as to why the City Council isn't granting the applicant's request for a zone change, when the application meets the land use. It could be a finding of incompatibility of the proposed use with adjoining properties.  Legally, nothing says that the City Council cannot approve a zone change at this time.

Mayor Hart indicated that the property owners have filed for this zone change and inquired if the Council is obligated to act in some way since there is an application before the City.  Dale Coulam stated "yes."  Mayor Hart referred to the hearing set for January 6, 2017.  Gary Pendleton indicated he didn't think the Judge would rule on the merits of the appeal at that hearing date and stated that it could take several months for that to occur.  The discovery phase of the case is set for May, 2017.  Mayor Hart commented that it could be several months before there's a determination.  Dale Coulam stated that was correct but indicated that if the City Council is going to grant a zone change, there is a different legal avenue and he believed that Gary Pendleton intends to file a petition for a referendum if the City Council approves the zone change.  Filing a referendum would put this on hold until the next municipal general election for the voters to decide.  Mayor Hart commented that it could be a year from now.  Dale Coulam indicated yes and stated that depending on the City Council's decision tonight, Gary Pendleton would have several legal remedies available. Mayor Hart stated the City Council wants to do the right thing and is not aligned on either side. This is something that having thought it through and reading considerable information, the majority of the Council determined that an RV Resort of this caliber does fit within Ivins General Plan.  Whether it belongs on this property is the matter of discussion here.  The City Council needs to decide if they want to move forward, given the conclusion that the Planning Commission came to and other statements made tonight. It is not to the Graf's benefit to have this drag on for a year or more.  He suggested the two parties meet to see if they can come to a resolution, otherwise it seems like they're looking at a long time before there is a resolution.  Council Member Roberts inquired if the City Council decided to table this until after the court has decided, would there be another Public Hearing or what is the procedure.  Mayor Hart clarified that the Public Hearing has been conducted and satisfies that legal requirement. Dale Coulam stated that the City Council can't table this until the Court decides because Jon Graf could ask the City Council to decide this issue and legally the City Council would have 45 days to decide. If the City Council is inclined to wait and make a decision after the court decision, then the City Council needs to deny based on the timing not being right.  The Grafs would then have to come back to the City and file another application for zoning because the City Council would have already processed this application and denied it based upon timing.  If the City Council proceeds and grants the application and the zone is changed to RV Resort, there is the likely hood of a petition for a referendum if there are sufficient signatures gathered and verified by the County Clerk, it's put on the ballot and there doesn't need to be an injunction because it's automatically on hold by law.  The City Council has a duty to act one way or the other. Council Member Mehr indicated that there is a responsibility for the City Council to have a full discussion and take some kind of vote or action tonight.  Dale Coulam stated that the council may not like either of the versions that have been drafted and if the Council decides to have changes made, he can draft another ordinance and place it on the next City Council meeting agenda.  Mayor Hart inquired what happens if the Council denies a zone change that is consistent with the Land Use Plan.  Dale Coulam clarified that if the City Council has a legitimate basis for denial, it could still be reasonably debatable.  That goes both ways for approval or denial.  If the City Council decided there needs to be a transition zone, it sounds like the reason for that would be that the City Council thinks that the RV Resort use is incompatible with the adjoining Pendleton property.  Gary Pendleton stated he's willing to negotiate but referred to the referendum process and stated that he has more than five (5) times the number of people that is required for a referendum and they have been cleared with the County.  He had no doubt there were enough people in this community that would support the referendum and then it would be likely that this whole project is trashed.  Mayor Hart indicated that what has to happen is they need to look forward and think about there being some things that will happen by the legal action and the potential action of a referendum.  The long term plan for Highway 91 is to widen it all the way to the end of the City and the safety issue would likely be taken care of along the way.  If the City draws the line for the parties and it's not acceptable, it would be all for not.  If he were in the Graf's shoes, the risk outweighs the reward.  Dale Coulam clarified that the City Council does have the option to continue this agenda item for one meeting, to allow the parties to negotiate.  Council Member Densley stated that he's not trying to hurt anybody and trying to make everybody happy.  If both parties can negotiate, he would like to see that happen and suggested that if it's possible, that Dale Coulam be the negotiator.  Dale Coulam clarified that he cannot do that because there's pending litigation involving the City.  Mayor Hart indicated that he could.  Gary Pendleton stated that he's willing to meet with the Grafs and the Mayor but indicated that he has to be in Salt Lake City on December 15, 2016 which is the date of the next City Council meeting.  Council Member Roberts referred to the approval criteria and indicated that there wouldn't be any damage to the public health, welfare and safety.  He referred to the transient tax and stated that people staying at the RV Resort will shop and spend money so the interests of the City are represented.  He stated that Highway 91 is the most compatible location for an RV Resort but felt that a transition zone is needed.  Regarding compatibility and suitability, the entrance to the City on Highway 91 is further the east of where the RV Resort would be and there's an electrical substation at the entrance of the City.  He stated that the Mayor and City Council already established that the use is compatible, based on land use discussion and he was in favor of the RV Resort with a transition zone.  Council Member McDonald indicated that he agreed with Council Member Roberts' opinions, other than the request for the transition zone.  He has friends on both sides of this and he thought it would be great to see an agreement between the two parties.  He believed that the City has followed the laws and that in the end that would be the case.  He was frustrated with the "he said, she said" back and forth and that the City is caught in the middle of that.  He supported the City Council making a decision tonight or postponing this for one or two meetings.  He was in favor of the zone change to RV Resort and stated that it would be a great benefit to the City and the proposed property is a great location for it.

Council Member Mehr indicated that he respected his colleagues' opinions.  He was on the side that he didn't think there's was a use for an RV Resort in Ivins community.  He acknowledged Dale Coulam for the good job he's done with outlining the City Council's options and helping the Council proceed with caution.  He restated what Dale Coulam explained that the quoted position letter was written by Ivins' Attorney that was retained by the City wrote those comments.  None of the City Council members would ever want to change the General Plan to intentionally harm any of Ivins' citizens.  He thanked Dale Coulam for clarifying that.  The Council has heard pros and cons for an RV Resort.  Some of the pros are Ivins is wanting to be a resort destination for people to come to Ivins and stay and visit when they're at the Parks or Tuacahn etc.  There are property rights that have to be considered.  Some of the cons are that Highway 91 is the main entrance and maybe not the premier main entrance into Ivins but is an entrance into Ivins.  The City has pending litigation and the City Council has to acknowledge the Planning Commission's recommendation to deny this ordinance.  Some of Ivins' citizens observed or perceived in the beginning that City designed the ordinance to meet the needs of the property owner.  The City Council made a legislative decision as a City Council.  His colleagues felt there was a need for this land use is Ivins community, although he did not agree, for various reasons already stated, including the Planning Commission's recommendation for denial.  Tonight the City Council is considering a zone change.  The City Council has received citizen comments and he hasn't heard anything to convince him to change his position.  None of the City Council members are taking sides with either family; this could be anybody proposing these zoning changes.  As an observation, as a government entity, it seems like the City Council is trying to get into problem solving mode and yet the City needs to acknowledge that the City Council created the problem by going against the Planning Commission recommendation in the beginning.  A core problem in society is that people often look to government to solve problems.  He applauded Mayor Hart in trying to encourage the families to work it out.  The City Council should recommend tonight denial, based on the pending legal action.  The City shouldn't complicate this further.  He realized his position is definitely in the minority as far as where the City Council is going in Land Use in Ivins' community, but given the nature of what's taking place, the City should pause and proceed with caution and agree or support the Planning Commission's recommendation to deny this ordinance.  Mayor Hart stated that there are two (2) possible motions: one to continue this to the next meeting or one to deny.

MOTION: Council Member Mehr moved to deny Ordinance No. 2016-28, an Ordinance of Ivins City, Utah, approving a Zoning Districts Map Amendment from RA-1 to RV Resort for the property located on the south side of Highway 91 at approximately 100 West
SECOND: 

MOTION: Council Member Densley moved to continue this ordinance to the next City Council meeting
SECOND:  Council Member McDonald

Council Member McDonald asked for clarification regarding the Public Hearing portion being continued.  Mayor Hart clarified that the Public Hearing has been held and is closed.  The only portion being continued is the City Council's discussion on the ordinance.

VOTE: The motion carried unanimously.

Council Member Mehr	AYE
Council Member McDonald	AYE
Council Member Roberts	AYE
Council Member Densley	AYE
Council Member Johnson	ABSENT

Roll call vote.  All Council Members that were present voted in favor.