All present included Mayor Hart,
Council Member Mehr,
Council Member Johnson,
Council Member Elliott,
Council Member Densley,
and
City Recorder Kari D. Jimenez.
STAFF:
City Manager/Attorney Dale Coulam,
Director of Finance Wally Ritchie,
Building and Zoning Administrator Mike Rodriguez,
and
Public Works Director/City Engineer Chuck Gillette.
EXCUSED:
Council Member McDonald
Audience: Thomas & Diane Rezny, Regina Roper, Nadene Barish, Bill Ayers, Michael & Laura Pierce, Gayle Sorenson, Gary Paquin, Gwen Harrington, Craig & Diane Shanklin, Robert & Mary Goodman, Dan & Jan Brown, Patrica Kent, Leo & Sheri Wohler, Jon & Barb Ervin, Pat Robichaux, Pat Barton, Chad & Nancy Morris, Jane Miner, Cindy Caulson, James & Phyllis Meyer, Karen Wolfe, Elizabeth Fortney, Richard & KW Smith, Bonnie Kline, Ron Klein, CJ Unzen, Chris Haddad, Jerry Bergosh, Don & Miya Harper, Jay Tullis, Deb Brown, Ellen Nathan, Bert & Bonnie Ward, Karen Walker, Jerry Wright, Jack & Jackie Scully, Mike Scott, Patty Dupre, David Cannon, D. Poffenberg, Charles Frederickson, Rusty McBride, Dorothy Franz, Glenn & Pamela Palmer, Phil Marty, Patricia Sherman, Pattie O'Rorke, Edward Asmas, Glenn & Kathy Davis, Jim & Lois Sloan, Gabby Rick, Jackie Rickman, Sue Polland-Walker, Paul & Virginia Miller, Marty & Kathy Spahr, Tennis Olson, Lisa Rutherford, Chuck Warren, Marcie DeBon, Jerome & Doreen Dillman, Lynne Johnson, Woody & Cindy Odil, Bill & Ellen Wentworth, Marge Lameka, Dennis & Karen Jensen, Stan & Lorena Murdock, Michael & Sharon Barton, MaryLou Elliott, Dean Platis, Sue Davidson, Dee Husebye, David & Rochelle Crimin, Debi Brew, Roger Bates, Andy & Alice Newberry, Susan Williams, Steven Elliott, Alan & CJ Koharcheck, George Stoddard, Douglas Caputo, George & Linda Schmal, Ronald Ragan, Sherri Eichelberger, Lance Anderson, Gary Everett, Jeanne Harrison, Connie Butterfield, Peggy Hackney, Chiska Derr, Dean Heard, Nathan & Sara Depre and others who did not sign in.
Mayor Hart acknowledged that there was a quorum present and indicated that Council Member McDonald was excused.
Council Member Mehr led the Flag Salute
Council Member Mehr gave the Invocation
Council Member Elliott referred to agenda item 5)A and acknowledged that Tuacahn's Attorney, Jonathan Hafen, is a former law partner in Salt Lake City. Council Member Densley referred to agenda item 5)A and disclosed that he has a signed lease contract with Sentierre on property that he owns on Snow Canyon Parkway and Tuacahn Drive. There were no other disclosures or conflicts of interest with items on this meeting's agenda.
Mayor Hart reminded the audience that this meeting did not include a Public Hearing and stated that the Council has heard from many of them. He requested that they remain considerate during the discussion.
Tuacahn and Sentierre Letters
Dupre & Scott Letter 1
Dupre & Scott Letter 2
Dupre & Scott Position Paper
Mayor Hart indicated that Mike Scott came forward approximately six (6) weeks ago with a Citizen Comment and Request for Future Agenda Item to the City Council. He thanked him for the information and stated that he has read every email and letter that was submitted. He commended the community for the thoughtfulness of the letters. Mayor Hart read the following letter from Tuacahn: "Dear Concerned Citizens of Ivins, We want to thank the people of Ivins and City Officials for their wonderful support of Tuacahn Center for the Arts over the past many years. We enjoy being part of this vibrant community and hope to enjoy our relationship for years to come. We have heard about the recent concerns expressed from community members about helicopters flying near or around the City of Ivins. At times there are helicopters that land on Tuacahn grounds. Tuacahn has allowed these occasional landings while working in compliance with Ivins City ordinances going back to when Tuacahn first opened. We express gratitude to the City of Ivins for having allowed us to do so over the last 22 years. Although the number of landings has been few (perhaps a dozen per year), it is important to our enterprise that helicopters have the ability to land at our venue. Since 1996 we have had dignitaries, government officials, producers, directors, performers, media outlets, high profile security risk individuals, and other influential business and civic leaders land directly at Tuacahn; often by their own requirements. We are happy to say that as of today we have never received a complaint from the community about these landings, of which we are grateful. As we continue to see a need to allow the infrequent landing of helicopters at Tuacahn, it is our commitment to ensure these landings operate at the lowest impact to the environment as possible. We thank you again for all you do and for your support as Tuacahn continues to reflect the strengths of this great community and strives to be an asset for the City of Ivins. Sincerely, Kevin M. Smith CEO".
Mayor Hart read the following letter from Stan Castleton, Founder of Sentierre: "Sentierre had an agreement to work with Tuacahn some years ago to explore the concept of helping Tuacahn to create safe helicopter landing zones in the existing access to Padre Canyon. However, Sentierre no longer plans to provide funding for any such improvements related to an FAA approved, or unapproved, landing pad on Padre Canyon Resort or Tuacahn property. Stan".
Mayor Hart indicated that before the City Council discusses this, he asked the City Attorney to address this. Dale Coulam read the following summary of his review of Tuacahn's use of helicopters: "After Mike Scott first raised this issue to the City Council, staff pulled the earliest file we could find for the construction of Tuacahn. This file contained an undated document entitled "Condition Use Proposal" but did not contain a Conditional Use Permit. From a hand-written note on the front cover of the proposal, it appears to have been received on or about August 10th, 1993. The proposal was for "Tuacahn School for the Performing Arts & Amphitheater" to be constructed in Ivins at its current location. Nothing in the proposal or the file mentioned the use of helicopters. Staff was able to locate minutes of a Town Council meeting dated August 12th, 1993 that included a summary of the Town Council's consideration of the Tuacahn proposal. Relevant portions of those minutes state: "Kerry Ence presented the feelings of the Planning and Zoning Commission on the project. The general over all concept is acceptable, but made approval recommendation subject to "stipulations" which he then listed, there being five total. The second stipulation stated: "Requirements for a conditional use permit be waived". The minutes do not mention any specific discussion as to this recommended stipulation until we get to the actual motion, which states: "Motion to accept the preliminary plat was made by Bill subject to the above five stipulations...motion carried with a unanimous vote." The Tuacahn proposal and file did not contain a specific reference to the zoning of the Tuacahn property. Staff's review of Ordinances believed to have been applicable in 1993 indicate the closest applicable zoning district as the General Commercial District. Section 17.56.030 sets forth possible Conditional Uses within that zoning district. The language used to introduce those uses is suggestive rather than exclusive. The heading states: "Conditional uses include", which I interpret to mean "such as" and then lists several suggested uses. No mention was made in the suggested uses about helicopters. But the waiver by the Town Council of the entire conditional use process appears to have given Tuacahn unrestricted use of its property as long as it related to the "Tuacahn School for the Performing Arts & Amphitheater". Staff did not find any reference in the City Code prior to 2005 that contained language prohibiting uses not specifically listed. Staff also did not find in the earlier City Code any reference, for or against, the use of helicopters. The earlier City Code set forth a procedure for code enforcement that required the governing body to request that an alleged violation be abated. Staff is not aware of any request ever being made by the governing body that Tuacahn stop using helicopters. The recent letter from Tuacahn about its use of helicopters states: "Tuacahn has allowed occasional landings while working in compliance with Ivins City ordinances going back to when Tuacahn first opened." This statement by Tuacahn is not entirely accurate. Tuacahn's use of helicopters was not expressly allowed by Ivins City ordinances, although I suppose I can understand how Tuacahn may have believed that to be the case after the Town Council waived the Conditional Use permitting process. The Tuacahn website indicates that it opened the Spring of 1995 so Tuacahn's claim is that it has used helicopters since that time. By Ordinance number 2005-13, which became effective July 1, 2005, the Ivins City Council adopted a completely revised Zoning Ordinance. This new ordinance did contain express prohibitive language against any uses not specifically listed as permitted or conditional in a Table of Uses. That language reads: "A use not identified in the table below is determined to be a prohibited use within Ivins City." The use of helicopters is not found in the table and, effective July 1, 2005, is considered to be a prohibited use. This general prohibitive language has been upheld by the courts; the only exception in Utah that I am aware of, is of a use found to be encompassed by a broader use that is expressly allowed. The case is Brown vs. Sandy City Board of Adjustments. This involved an argued prohibited use of a single family home for short-term rentals. Since the rental of a single family residence was expressly allowed for other lengths of time, the court found that in order to be an effective prohibition, it must be expressly stated as such. With regards to the helicopter issue, we do not have in the Table of Uses an expressly allowed use that might encompass helicopters, such as an airport or helipad. Therefore, the general prohibition "A use not identified in the table below is determined to be a prohibited use" is, in my opinion, legal and binding - just as much as if a specific prohibition against the use of helicopters were to now be adopted by the City Council. So where does that leave us with Tuacahn's historical use of helicopters since the Spring of 1995? In my opinion, I see nothing that prohibited such use from the time Tuacahn opened until July 1, 2005 when the City's new Zoning Ordinance became effective. It is my further opinion that from July 1, 2005 to the present, and into the future, Tuacahn has what is called a legal non-conforming use, or in layman terms, a "grandfathered" use. But, as a legal non-conforming use, Tuacahn may not significantly increase the intensity of that historical use; it is a limited use that cannot be expanded beyond the infrequent use noted in Tuacahn's letter. It is, therefore, my opinion that Sentierre is not allowed to use Tuacahn's property for helicopter use by its guests or otherwise. What I have presented is my legal opinion on this land use issue. Utah has a unique office of Land Use Attorneys whereby they will give their legal opinions on land use issues. It is called the Office of the Property Rights Ombudsman. since it usually takes a couple of months to get a legal opinion back from that office, I have not submitted this issue to them for them to review. However, should the Council like a second legal opinion before deciding how it wants to proceed, then I would be happy to submit this issue to that office for their review."
Mayor Hart stated that to streamline what Dale Coulam provided, Tuacahn has had a historic use of their facility to land helicopters. Dale Coulam indicated that was correct but that Tuacahn could not expand that limited use of a dozen or so landings per year and Sentierre would be prohibited from using Tuacahn's property for helicopters. Tuacahn's property right runs with the land. Mayor Hart referred to the current ordinance that makes helicopter landings and take off illegal in the City. Dale Coulam stated that "yes". Mayor Hart referred to Mike Scott's position paper on page 2 wherein it's suggested that the solution is to pass a more specific kind of ordinance. Mayor Hart inquired of the City Council if they were satisfied with Dale Coulam's legal opinion or if they would like to have the State's Ombudsman's office provide a second legal opinion. Council Member Elliott inquired if the question that would be submitted would be on Tuacahn's historical use and additional questions or just the historical use. Dale Coulam clarified that it would just be Tuacahn's historical use. The prohibition for Sentierre is clear. Council Member Densley inquired if Life Flight was excluded from the prohibition. Dale Coulam clarified that any emergency flights can land anywhere they need to land. Council Member Johnson inquired if the prohibition also excludes helicopters that have flown in to the elementary schools for educational purposes and into the City for emergency training. Dale Coulam clarified that if it's not an emergency, it's prohibited. Mayor Hart inquired if an entity wanted to have an ordinance amended, would they be allowed to do that. Dale Coulam clarified that they would have to affirmatively approach the City and ask the City to change the law. Mayor Hart inquired if they did that, if they would have to provide evidence that they were not going to impact the city negatively if the use was allowed. Dale Coulam indicated the City would expect that. In other land use applications for commercial development or residential subdivisions, the City requires drainage studies, geological studies, hazard studies so that the City can properly evaluate the application. All of those studies are paid for by the applicant. If someone approached the City and wanted the right to use helicopters, that expense should not be borne by the City, but by the applicant. Mayor Hart referred to page 6 of Mike Scott's position paper under Environmental and Other Impacts, referencing it being prudent for an Environmental Impact Study to be conducted before permitting any such use and stated that he was in complete agreement with that. If the City decided to move forward on it's own, that study would be funded by Ivins. He inquired as to the cost of a typical study. Chuck Gillette indicated it's approximately $35,000. Mayor Hart pointed to page 2 of Mike Scott's position paper under "Why Now, What's The Urgency" and read the following: "Finally, even if the City has not received any formal or legal notice from any applicant for helicopter landing area, or even if the City receives notice that Sentierre abandoned plans for helicopter landings, now is the time to act by instructing the Planning Commission to take one of the two actions we request because (1) there have been violations in the past by either Sentierre or Tuacahn or both. The City needs to make it clear this is not a permitted use and be better prepared to deal with future violations". Mayor Hart indicated that Tuacahn was an exception. He went on to read: "(2) the City has no remedy in its codes for assessing significant financial penalties for violations;" Mayor Hart referred to Dale Coulam regarding that. Dale Coulam stated the City could address it through Code Enforcement. Code Enforcement does have a mechanism to impose civil penalties. Mayor Hart continued to read from Mike Scott's position paper: "because this issue has come up with two entities, it could easily reappear with others, so it makes sense to clarify our Use Tables, so others do not get frustrated and waste time and money'" Mayor Hart stated that the position paper indicates that there are other communities that have passed such legislation. He indicated that the question that confronts the Council is either they address this now or they obtain the opinion of the State Ombudsman and table this until that opinion is provided. Another option is to address this in the future when an actual application comes forward and the cost of that study would then be borne by the applicant. Council Member Densley inquired if Tuacahn is allowed 12 helicopter landings per year because they're grandfathered in and anything above that would be in violation. Dale Coulam indicated yes and clarified that he personally was not aware of Tuacahn's use of helicopters until Mike Scott raised it and he has never been directed to take any action regarding helicopters. There has also been nothing historically that has been disruptive to residents in Ivins because there hasn't been a single complaint. When the new zoning ordinance contained general prohibition language, it wasn't because there was an issue with helicopters. That wasn't the reason for the new zoning ordinance. He suggested that it would be reasonable, for code enforcement purposes, to pursue an understanding with Tuacahn regarding receiving a report about when they land helicopters. Otherwise, it's difficult to know.
Mayor Hart stated that he didn't know how concerned the City should be because he has lived in the neighborhood that the concerned residents live in for 21 years and has never heard the helicopters. He indicated that an application would have to come forward from an entity for use of helicopters beyond what is currently allowed for Tuacahn and suggested that it may be worth while for everyone to consider that if it's not problematic. The audience did not agree. Council Member Johnson indicated that residents and the Council likely don't want to expend $30,000 for an environmental study and felt that it was important for emergency training to continue to occur with helicopters because that training is crucial. She would also like to see them used for educational purposes with school kids. She doesn't want to see helicopter tours but would like some type of allowance for helicopters to come to the Ivins community. Council Member Densley agreed with Council Member Johnson and stated that he'd like to see something on the basis of an educational factor. The audience did not agree. Mayor Hart stated that any variance to the ordinance that is in place would require a specific ordinance so the City either goes down that path or we they wait. The process with start with the Planning Commission although he would personally oppose that without going through and obtaining a study because he wants to know what the levels and impacts are. The City Council could ask the Planning Commission to move forward and address the issues that Council Member Johnson has brought up but theoretically, Tuacahn remains immune. Council Member Elliott was concerned with adopting a new ordinance because that would be subjecting the issue to further challenge. The ordinance that is currently in place does not allow helicopters and is not subject to challenge. Dale Coulam stated that was correct and any ordinance that was adopted would be subject to appeal and a possible referendum. Any party could challenge the ordinance, including Sentierre. The ordinance that is in place now has been in place for more than a dozen years and has not been challenged. Council Member Elliott inquired if the Office of the Ombudsman would be able to tell the City what challenges would be out there. Dale Coulam indicated "no", they would only give their opinion. Mayor Hart inquired if the City Council if Tuacahn's current use rises to the level that would require Ivins to obtain a second legal opinion. Council Member Mehr agreed with Dale Coulam's opinion and indicated that if the Ombudsman came back with a different opinion, the Council would continue to support Tuacahn. He didn't feel that it was necessary to ask for a second opinion based on Dale's assessment. He stated that the City needs to be careful about what we ask for. Based on what Dale Coulam provided, Tuacahn has a legal non-conforming use but no one else does. He didn't think that an ordinance should be pursued at this time. He was also supportive of allowing helicopters to land once or twice a year at a school for education purposes. Council Member Elliott agreed with Dale Coulam's assessment and indicated that it was sufficient for their purposes. The current code is sufficient and felt that adopting a new ordinance would open up more problems. She'd like to see the prohibition more clear in an ordinance but opening it up outweighs that potential problems. She did not want to address a new ordinance for those reasons. Council Member Densley stated that the City was closing the doors for opportunities for education but if the City opens the door, it could be challenged. He followed Dale Coulam's opinion. Dale Coulam clarified that this currently is not a land use decision because there no application before the City. If the consensus of the Council is that they're satisfied with the existing ordinance, then no further action will be taken at this time. If an application comes forward, that would then be a land use decision and the applicant would need to provide studies at their cost. Council Member Elliott indicated that she would like the City to pursue an agreement with Tuacahn to report on the number of helicopter landings that occur. Dale Coulam stated that he will make that contact and report back to the City Council. Mayor Hart indicated that ends this agenda item and thanked the residents for their written comments.
The meeting recessed at 6:50 p.m. to allow for the Council Chambers to clear. The meeting reconvened at approximately 6:55 p.m. Council Member Mehr inquired if the Council could continue to briefly discuss this. Dale Coulam stated "no".
In session at 6:55 p.m.
Development Agreement
Dale Coulam indicated that this agreement was drafted sometime ago as a lot averaging overlay but the phasing has changed. This is now a standard agreement for a standard subdivision and does set forth specific drainage improvements. The pipe referenced in the agreement hasn't been installed yet but it will be. Chuck Gillette stated that he spoke with the developer this morning and he also intends to require a 35' setback for the lots on the south property line. Dale Coulam clarified that Staff recommends approval of this Development Agreement with that amendment.
MOTION: Council Member Densley moved to approve the Development Agreement of the Red Desert Subdivision located at approximately 350 North and 600 East; Rob Roush, Owner; Red Earth Development, Applicant, as amended with a 35' foot south setback for the south property line
SECOND: Council Member Elliott
VOTE: The motion carried unanimously.
| Council Member Mehr |
AYE |
| Council Member Johnson |
AYE |
| Council Member Elliott |
AYE |
| Council Member Densley |
AYE |
| Council Member McDonald |
ABSENT |
Staff Report
Chuck Gillette indicated that he's been trying to complete this project but has been unable to receive a single bid. He contacted multiple people and only received one (1) bid. He considered using Parks Staff but they are busy with other projects. Mayor Hart stated that he has a Landscape Contractor that he knows well that he will contact. he has been able to save buyers a significant amount of money and the quality of work is high. Chuck Gillette suggested that the Council approve the expenditure amount and then he'll seek another bid. He didn't advertise but contacted a dozen different landscapers requesting bids. Council Member Mehr understood the sense of urgency but was concerned with receiving only one bid and inquired as to what the downside was of waiting a year and having staff do the work. Chuck Gillette stated that if it isn't tied to the tank construction, it may not justify using impact fees. Mayor Hart suggested authorizing a maximum amount.
MOTION: Council Member Elliott moved to approve an expenditure of no more than $47,025 for landscaping at the Cliff Rose Tank
SECOND: Council Member Johnson
VOTE: The motion carried unanimously.
| Council Member Mehr |
AYE |
| Council Member Johnson |
AYE |
| Council Member Elliott |
AYE |
| Council Member Densley |
AYE |
| Council Member McDonald |
ABSENT |
Dale Coulam provided Open Meetings Training and a part of that training included handing out a document on Open Meetings and Rules of Conduct/Disclosures. A copy of the document is available by request through Ivins City Hall. The training is important and required to be provided annually. He encouraged the Mayor and City Council Members to watch Open Meetings training presentations provided by David Church.