Mayor Hart stated that this is a carryover discussion from the last meeting, having to do with the options that Ivins City might have to look at, in response to a diminishing supplies and growth that continues to add hookups to the existing situation. He hoped that any discussion would also acknowledge that there are plans in motion and funding being made available for additional facilities that will add to the supply Ivins has but that is not a static thing. Ivins does not have a fixed amount of water and that's it. Through conservation and through reuse, the source is added to or even multiplied. Starting that conversation off with the suggestion that one extreme to address this is a moratorium, which has been touched on. The other extreme is just continuing on and hoping that the increase in supply that comes, is sufficient for future growth. Council Member Anderson commented that he thought that the conclusion was the Water Conservancy District was going to tell cities what to do. Mayor Hart indicated that one of the ideas is that a development must bring its own water, and then it's not an issue for the City or the District. The problem is, there are not a lot of available water rights. Not all land has agricultural water attached to it. In a way the Will Serve letter that's moving its way towards implementation, is just that. The developer receives the Will Serve letter by paying impact fees at an early stage and is given the right to use some of the water that is there. Every City in the County has fully utilized all of their own water rights. Ivins ran out of water in about 1998 and has been reliant on the District for all of the additional water required for the growth that's occurred since then. Every City is in that same position and can't adequately supply water from their own water rights and resources to sustain growth. All cities are in the same basket and just bringing different amounts of water to the conversation, with Ivins being the lowest on that totem pole. Council Member Anderson inquired what is the intent of this conversation and what are they trying to accomplish? Mayor Hart stated that it is very difficult to move the District along because there is an agreement in place that is in the process of being looked over and recommended changes made. Not all the cities see this problem the same way. There are some real obstacles in trying to educate and get facts for everyone to understand and come to a consensus. Chuck Gillette is Ivins representative on the committee doing the review of the agreement and that discussion is in committee and not public until there are some conclusions reached. Chuck Gillette indicated that there have been discussions about what are the numbers of how many units have been approved by all the cities and those numbers were supposed to be delivered to the Water Conservancy District yesterday. He saw a preliminary table of how many units have been approved. He didn’t know he would be reporting tonight but off the top of his head, the number of existing lots and the number of preliminary plan lots, existing lots or platted lots that don't have a building permit yet, plus vacant lots and the lots being called preliminary plan lots which have already received some sort of approval. Adding those up are 5,000 vacant lots are in the County. Then add up the number of preliminary plan lots, that is 10,000 and the number of lots included in either a PID (Public Infrastructure District) was about 45,000 so that is 60,000 lots that are in some sort of development pipeline. There will be some meetings to talk about what to do and whether or not there should be a moratorium set in place. Mayor Hart clarified that those are lots that are systematically moving towards not guaranteeing water for because there is not enough water for all of the lots that are at some level of being designed. Ivins City is taking a very serious look at water. There are other communities that are approving enormous 3,000 to 4,000 lot developments, without acknowledging water. The first Ivins City "Talk About" with the community, is going to be a one (1) to two (2) hour discussion, specifically about water with experts. Council Member Scott has done some in-depth research and there's cause for the discussion. Because of a pooling agreement, Ivins does not get to decide how many hookups Ivins will have available. As it stands right now, it is a first come, first serve process. A 4,000-lot absorption will not justify a 4,000-lot subdivision being planned and developed all at once. The strategy is projects that are coming online that are receiving State funding, is to put into place a substantial reuse system. In other words, every drop that comes down the Virgin River doesn't just get used once and then it goes down the river. It is used two (2) to four (4) times. Las Vegas uses every drop of water approximately seven (7) times and that is through minimizing outdoor water use and taking every drop that comes down through the inside of a building and processing it, putting it back into Lake Mead, bringing it into the water treatment plant and using it for culinary water again and again. Since the Lake Powell pipeline is a long way out there, the District, through conservation and through reuse, are trying to supplement the supply to accommodate at least some level of growth. Unfortunately, the Districts storage projects, which includes the Ivins Reservoir and Warner Valley, that's probably 10 years out. The trick is how does Ivins go from here to having these substantial additional facilities in place that increase the supply sufficiently for growth to continue? Council Member Anderson inquired if a new reservoir gets built in Ivins adding 1,600-acre feet of water, who gets those 1,600 feet of water? Mayor Hart stated that it is part of the pooling agreement and that's why there must be a clarification as to when entitlement to water occurs and that must happen by phases. Council Member Scott commented that he has a lot more information that he will provide at the "Talk About" meeting but the question is are they really going to be dealing with waste water as reuse water or culinary water but that seems to still be up in the air. He has had meetings with the Water Conservancy District and went over a model he put together based on the District's data and their primary consultant who did their Master Plan and their Impact Study, reviewed what his model and he has a meeting next week to finalize it. He will talk about that more when it is finalized. His concern was that the Districts new impact study said that they ended the 2022 water year using 99% of the available water. They had about 600 acre feet of water and that doesn't build many new homes. There are things that are coming on, they have the Ash Creek and the Toquerville project but those are not happening until 2025 and 2026 and those will only add approximately 3000 acre feet of what. At this point, that is the closest addition of what that they are going to get. The reuse will likely come after that and that starts out at approximately 16,000 acre feet at best and grows slowly as the hookups happen and as the reservoir storage happens. The Districts own impact study said technically that they are out of water sometime in 2023 to use for new hookups but their model shows that they still limp along okay until approximately 2028 but that's because the Districts model assumes there is going to continue to be the kind of water conservation that has been occurring in the past. That begs the question, have they already picked all of the low hanging fruit and water conservation becomes more difficult? Now they are doing new things like the the turf replacement program that is going to help stimulate more conservation. Conservation in Ivins has helped Ivins significantly, particularly in the summer months. Conservation is a real thing and will it will continue but his concern as well is that if the District staff was in control and run things, they would run it perfectly but they are beholden to a Board and other special interests who have different or competing interests. The way the District is forced to model supply is based on what he would call a leading supply model instead of a lagging supply model. He will clarify this next week and have further clarification at the water "Talk About" where Zach Renstrom with the Water Conservancy District will also be present. Mayor Hart indicated that the District is looking at every possibility for increasing our water supply. There are other sources but they are going to be expensive. He gave an example on water conservation and stated that 10% of the top water users, that means residential hookups, 10% of residents across the county, consume over 25% of the total water supply. Approximately 25 years ago when a hookup for a residence was secured, by law, the District had to set aside .89 acre feet of water for that use each each year and that is basically what the impact fee allocated for that hookup. New construction now is at .59 acre feet and the intent long-term now is to start encouraging, educating and incentivizing older residences to start working their way down to .78 acre feet is the first target and then below that as they are able to. As the Mayor serves on that Board, you will hear him bring up what are we going to do to stop this immoral, in his opinion, extravagant overuse of a substance that is required for life in this County. If he has his say, that is going to translate into something draconian to the extent of if someone is financially capable of paying an extra $200 to $300 on a water bill, he wants to see that water bill go to $10,000 for overly excessive use. In other areas of the desert southwest where Districts have greater control or where the municipality has greater control, they will actually use reducing valves on the supply and there are case studies that show that when there is overuse, their flow is reduced again. They hate the idea of penalizing existing residences but just because they have had an adequate supply, with the Virgin River, there was always something to develop to further utilize that volume of water that was flowing out of the mountains, that water is fully allocated now so it's either multiplying that use or reducing that use via conservation. The question is, how far is Ivins City willing to go, how far is the County willing to go? because the Water District does not have governing authority. What Chuck Gillette is doing on behalf of the City is extremely important because in order for Ivins to implement the Will Serve letters and so forth, this agreement has got to be signed by all of the cities involved or the City will have to withdraw themselves from the agreement. We are in that kind of a serious situation.
Council Member Murphy referred to the moratorium and commented that all of the other cities in the County don't do the moratorium, then does that just not let all of the other cities go and pull up all of the water and keep doing what they're doing and Ivins just sits back - it seems like it needs to be an overall consensus of all of the cities in the County to say "okay, we're in trouble, let's sit down and do what we have to do" but if you have a City out there that continues to do 3000 building permits, there has to be a consensus among the cities. Mayor Hart commented to think about the consensus on the City Council and then multiply that by six (6) City Councils that have entirely different attitudes towards this. In his opinion, there have been some cities like Ivins that have been extremely responsible about this and some of them are major populations. St. George City, Washington City, Santa Clara and Ivins have been and other municipalities have done something. The questions becomes does Ivins penalize developers in Ivins or exclude anyone moving into Ivins because another City in the County is ignoring the situation. Council Member Anderson stated that Ivins has an agreement with the Water Conservancy District to supply Ivins with water and when they can't supply Ivins with water anymore, then the City needs to make new decisions at that point. Right now the District has not told Ivins that they are not going to supply water to Ivins. The Council keeps talking about it and gathering information. Mayor Hart indicated that there is the legal side of vesting and liability. Dale Coulam stated that he was asked to look at the legal side of moratoriums, which on a municipal level, are known as temporary land use regulations and they can go for a period, not to exceed six months. The municipal legislative body may enact an ordinance establishing a temporary land use regulation, or in other words, a moratorium, if, and here's the finding that has to be made "...a compelling countervailing public interest. The City may prohibit or regulate the erection, construction, reconstruction or alteration of any building or structure or any subdivision approval." Those are all administrative decisions and are not zoning. Under the temporary land use regulation, it does not act as a moratorium on zoning. That's a legislative decision, but the Council already controls that. The Council decides whether to rezone a property or not. A temporary ordinance would say there will be no further building permits and no further subdivision approvals. When mixing zoning with a development agreement, it is mixing the legislative decision with an administrative decision. There can be a moratorium on the development agreement, but not the zoning. That's why he has never recommended the Council to have conditions like the conditional use permit, which is also administrative, or a development agreement, which is administrative, with the Council’s legislative decision. The Council should keep a very clear distinction between what it is being decided as legislative or administrative. The Council can put moratoriums at the City level on administrative decisions, but not legislative for zoning. Mayor Hart commented that means the Council is obligated to act on zoning. Dale Coulam clarified that the Council must have a reasonably debatable finding to support a zoning decision. With a reasonably debatable finding, the Council could deny a zoning application. A moratorium is an absolute - putting a stop to these administrative approvals for a period of six (6) months to give the City time to pass tighter land use regulations and tighter ordinances, that's its purpose. It's not to just say the City is going to put a stop on building and it can go on forever. No, it's that Ivins City is going to create a new ordinance and it's going to last six (6) months. That is different than a declaration of a public emergency and the District controlling the water can go that direction and say the County is out of water. The District could not allow any further allocation of water for new buildings to be constructed because there's just nothing to allocate to that. But as far as an application coming in for a zoning decision, the Council has legislative authority to approve or deny that with a reasonably debatable finding to support whatever that decision is. The Council already controls zoning. It's the administrative decisions to say this is administrative, so the Council does not have the ability to deny. The Council can put some reasonable conditions to mitigate adverse consequences but can't just outright deny the vast majority of cases. If the council does a moratorium, it will pass tighter ordinances and that may not answer the question but it still may buy the City six (6) months. It is possible that six (6) month period, the State law changes, giving the City some additional tools to be used, realizing that the drought that has been experienced in the past several years, is a statewide condition. Things can change at the State level and Ivins is a political subdivision of the State, and Ivins would then get direction and authority from the State. Can the fact that Ivins City is in the process of preparing a General Plan amendment or rewrite, be the basis to pass a temporary ordinance or do a moratorium? It can be if the Council finds that as a compelling reason and countervailing public interest, that would be the finding. It’s not just the fact that Ivins is doing a General Plan amendment. The Council must make a finding and if that was the finding and it was appealed, it would be up to a District Court to decide but that is the statute that deals with local moratoriums. It's called a temporary ordinance that is put in place for six (6) months, to allow the Council to pass tighter or different ordinances. Mayor Hart referred to water and inquired if when it comes to water, isn’t Ivins reliant on the District telling the City when there is no water? He recalled in previous conversations that was the condition. Council Member Scott commented that the problem was that the Council must make a finding of a compelling countervailing public interest. The Council could say that Ivins is out of water but then the District at this point will say, well no, that's not right. The Ivins Council can't prove Ivins is out of water because the Water Conservancy District is ready to give Ivins more water tomorrow, putting Ivins in an awkward spot. He will have more confidence in his numbers on Monday, but looking at the Water Conservancy Districts data, Ivins is out of water this year but because the staff or the consultants for the Water Conservancy District can't make the statement that we are out of water, that has to be done by the Water Conservancy District Board. The more important issue is, how can everybody get together on this fast because it hasn't been happening. Council Member Anderson indicated that the Water Conservancy District Board is primarily made up of Mayors from different municipalities. Mayor Hart clarified that it is Mayors and some City Council Members and in one case, a former City Council Member. Council Member Anderson referred to the agreement that Ivins has with the District and not being able to get its own water. Mayor Hart clarified that it is called a pooling agreement and Ivins has agreed to that. It's a pooling agreement where Ivins water goes into the pool and that's what everybody else has agreed to. Mayor Hart stated that he was not sure that a moratorium or temporary land use regulation isn't in order at some point and to him, it was more of a matter of timing. Council Member Anderson inquired what would be the purpose? Mayor Hart indicated that if Ivins gets to the point where there is no source, then the Council is going to have to enact a moratorium but it depends on what the Water Conservancy District is telling the cities at that point and this discussion is about alternatives and what other options there are. Chuck Gillette stated that there will be a meeting on Monday at the Water Conservancy District where the Mayors and City Managers discuss some of these things and then there is a meeting after the meeting with the Mayors, to discuss whether there should be a county-wide moratorium.
Council Member Anderson indicated that looking at what Ivins is using now and what Ivins has available, approximately 2,000 acre feet is what Ivins needs for the total growth of the City, based on future numbers. Mayor Hart commented that another 10,000 people are assumed to be coming to Ivins in the future and the County is forecasting another 300,000 people to the County. Some of this is going to come out in the Ivins "Talk About" where Zach Renstrom with the Water Conservancy District will be in attendance, along with one or two other specialists in this area. He inquired other strategies there are, if a moratorium is not practical, at least at this moment in time? What are the other things that that Ivins as a City, ought to be looking at as a City Council, that can be addressed going forward? Council Member Scott stated that later in the agenda tonight, the Council will re-look at the Water Conservation Ordinance. Conservation is a real thing and it has worked and helped and will certainly help to some level in the future. The more cities can encourage conservation, the better. The other thing is the timing of reusing wastewater and that is going to have to be a region wide project. Mayor Hart indicated that is a huge decision and from what he gathers from the engineers and everybody else, Ivins is likely looking at a hybrid system that would provide secondary water to at least some of the major public areas like parks and potentially not going beyond that, but investing up to $15-$30 million dollars for a secondary water system through Ivins City and potentially putting that into, or having the Water Conservancy District build a reuse plant that literally takes the water to culinary grade. Council Member Anderson stated that after spending hours with engineers and really looking at the County, Ivins is probably the least feasible to pump water too because Ivins is the highest the Water Conservancy District serves. It makes no sense to send wastewater to be processed and then send it all the way back to Ivins. Mayor Hart indicated that one of the troubling things to him with development is that most often, agricultural land has irrigation rights associated with it, either that or separate water rights. Water rights and irrigation rights have become a commodities market, going from $2,000 to $3,000 a share, to $18,000 to $20,000 a share. As someone acquires a piece of land, theoretically the water rights that come with it or not, those are sold off as a commodity separately then the developer or the landowner comes to the City and says, okay, I want to build this hundred lot subdivision and by the way, I want the District to provide all the water to do that. In the meantime, they are selling off all the water that came with the land. This is complicated legally, but it has been done and Santa Clara is looking at an ordinance now to require that if there is water associated with a parcel of land, that comes before the Council for approval for a zone change or a development approval. That water must be provided and comes into the pool in some way. Council Member Anderson clarified that Ivins water rights do not relate to a piece of land. Most of Ivins water is being leased by someone to keep the land in the green belt. Chuck Gillette stated that was correct and kind of a problem. A water right usually is associated with a piece of property, whereas the shares that are in a boundary that says they can be used anywhere inside of the boundary. Mayor Hart commented that he sees this as a real problem, that the expectation for development on the Districts supply, where there may be water rights in some way. In lieu of a moratorium, if the Council enacted a requirement that a developer bring water with them, that would effectively be putting a moratorium in place, without it being a moratorium. Council Member Murphy indicated that it still goes back to the law. If the Council is saying they need to do a moratorium because there's no water but there's water available from the District, then where's the compelling reason? That's the problem. It is going to get challenged.
Ordinance
Mayor Hart indicated that he has been studying around the City and commented that for this ordinance to have any effect, it has to be punitive and in his opinion, that means a - 10 foot plate line and 13 foot parapet, meaning maximum 13 foot wall on a flat roofed home and max of 18 feet on a pitched roof home. If they do not decrease heights down to that level, the ordinance isn't going to be effective at all. At the last City Council meeting, the discussion ended with a request to define the area of the Historic Township and exclude that from this regulation. Council Member Anderson added that the City could be more lenient on the roofline if the roof was darker. The Mayor and City Council had an depth discussion regarding heights of a flat roof and pitched roof, parapets, wall heights, plate lines, design guidelines, development agreements, imposition of design guidelines and development agreements, and the reason the Council was discussing amending maximum building height regulations. Council Member Scott clarified that if a developer comes to the City to build and the City tells the developer that City wants the developer to comply with the City's design guidelines and other items in the development agreement but the developer tells the City "no, I'm not going to do that", the City cannot deny the developer the ability to build based on complying with the design guidelines. Prior to the State changing the law, everybody has to comply with Ivins design guidelines, whether there was a development agreement or not. When the State law changed, the State law said people do not have to comply with the design guidelines, they are irrelevant, however the City can, a development agreement, include the design guidelines but that is a negotiated item and if the applicant refuses to comply with the design guidelines, the City cannot block the developer from building their development. Mayor Hart commented that the height of the building was excluded from that so if this is ordinance was approved and an application came in and the applicant refused to abide by the design guidelines, using maximum height regulations is how the City would steer the developer back to the design guidelines. Council Member Johnson and Council Member Mehr were not in favor of amending the maximum building height regulations to require compliance with the Ivins design guidelines. Council Member Anderson and Council Member Scott were in favor of amending the maximum building height regulations to require compliance with the Ivins design guidelines and Council Member Murphy needed more information. After further discussion regarding heights, Council Member Murphy determined that amending the maximum building height regulations as has been discussed, was too confusing. In her employment, she was used to looking at this kind of stuff and what has been proposed was confusing. She understood what the intent of amending the height regulations but going this route was too confusing and convoluted and was not in favor of amending the maximum building height regulations to require compliance with the Ivins design guidelines.
MOTION: Council Member Mehr moved to deny and not approve Ordinance No. 2022-16, an Ordinance of Ivins City, Utah, amending Maximum Building Height Regulations for One or Two-Family Dwellings
SECOND: Council Member Johnson
VOTE: The motion carried.
| Council Member Mehr |
AYE |
| Council Member Johnson |
AYE |
| Council Member Murphy |
AYE |
| Council Member Scott |
NAY |
| Council Member Anderson |
NAY |
Roll call vote. Council Member Anderson and Council Member Scott voted "nay" in opposition to the motion and Council Member Murphy, Council Member Johnson and Council Member Mehr voted "aye", in favor of the motion. The motion carried. The ordinance not adopted.
Council Member Scott stated he had a three (3) part comment on how to look at the survey results, the reliability of them and the usability of them. Part One (1) is to look at the statistical approach. He and his wife have done a lot of surveys but for the Ivins survey, he reached out to four (4) professionals who have a lot more expertise in analytics. The professionals looked at the survey and made comments. One expert was Hans Walters who is a PhD, a Data Scientist, a Mathematician and led the Biostats and Bioinformatics Department at Microsoft. He was responsible for clinical trials, scientific experiments, and similar. Hans Walters conclusion was, “the large number of responses results in a high confidence level, higher than many reputable surveys, and a very small margin of error.”, meaning the City should treat the survey as a meaningful representation of the views of the citizens. Professional number two was Wayne Pennington, a retired Dean of Engineering and a Geophysicist who dealt with probabilities and agreed with Hans completely, as did Professionals three and four, John and Kristen Hunt. The Hunts' are both PhD's who taught and conducted research at universities for cities, states, and countries. All of the professionals have a history of working in survey research. Part Two (2), looking at the survey responses is understanding or acknowledging at least that data is boring, but people are not. Surveys were limited to one (1) response per household, specifically so nobody could stuff the ballot box with multiple survey answers. That made the survey results more reliable, but it meant some people got left out and it probably reduced the number of responses. A lot of households might have given two (2) responses. At the last meeting it was mentioned as an example that one (1) person filled out the survey, but six (6) other adults in the household had different opinions. If all adults in the household would have answered, it might have been different. The only caution there is being careful about making conclusions from personal stories. That is hard though because we will more likely value what a neighbor says, than a number in a report. Statistical data lacks any emotional kick, so people are discounted. Additionally, a pitfall of personal stories is kind of prewired to cherry pick ones that fit ones own views. Both of these bias our personal conclusions when one-on-one stories are heard from people. Accepting the truth about decision making is messy. Nobody can say what the results would be if 100% of the citizens of Ivins answered the survey. It is unknown how that would change the results. The Council would certainly feel better about making decisions if 100% of the people responded to the survey but it can be said what 2,244 people said. He doubts the City has ever had more people weigh in on any topic, let alone 54 different topics. Until someone produces an equally rigorous survey with more responses, this is the best the Council has and decisions are rarely based on complete information but surveys rarely provide as much information as the Ivins survey does. He believed that what Hans Walters said - the survey should be treated as a meaningful representation of the views of the City. Mayor Hart commented that reading through the survey results, Ivins has a diverse population. There are opinions that range from one extreme to the other. The survey dealt with percentages and statistical evidence that is highly reliable. His concern was having gone to the trouble and expense of going through this process, talking extensively with residents about these things and the Council has a pretty good understanding of what the majority, are saying about this. That does not mean that the Council is going to do everything based on the survey results. In some cases, there is State law that will prohibit the Council from following exactly what the survey might have pointed out. In other cases, there will be some financial issues to figure out when it comes to all of the wants. He hoped the Planning Commission and City Council could set aside personal points of view before voting. The survey is what it is and it says what it says. Those are the realities of what residents have said and he agreed with Council Member Scott there was a very low margin of error. Council Member Anderson indicated that he did not think that the survey was unreliable and he was not calling the results "stories", they are responses. He did not want to ignore others feelings. When doing the math for the survey, 24% of people responded for 9,000 people. Still great from a household standpoint but when a constituent comes to him and talks about the survey, he is not going to ignore that persons feelings because they didn’t have time to fill out the survey or whatever, that person still lives in Ivins and has an opinion. Council Member Scott and his wife put in a lot of hours and the data was good, but people keep talking about "people" and not "households", which is one data point. Mayor Hart stated that the Council was entitled to do that and commented that neither the Planning Commission or the Council hands were tied by the survey. The Council does not have to necessarily act on it. Nobody said when the survey was sent out that this was the policy and the Council has to adopt it. Reading the written comments, he knew where people stand. The challenge that the Planning Commission and City Council is going to have to face is, how to find a point somewhere that works for everybody. Council Member Anderson commented that the survey was important. It has given information to look at but there are still people that communicate with the Council each day because they didn't do the survey but they are still residents paying taxes and he will take those responses into consideration. He did not want Council Member Scott and his wife to think that the efforts they put in the survey, that it wasn't important, because it was and it has brought out a lot of interesting information.
The meeting went into recess at 8:05 p.m.. The meeting was called back into session at 8:10 p.m.