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MINUTES OF THE REGULAR MEETING OF THE
CITY COUNCIL OF PLEASANT VIEW CITY, UTAH
January 22, 2008
The public meeting was held in the city office at 520 West Elberta Dr. in Pleasant View, Utah, commencing at 5:00 P.M.
MAYOR: Doug Clifford
COUNCILMEMBERS:
Scott Boehme
Mae Ferguson
Tim Hjorten
Michael Humphreys
Todd Walker
STAFF: Laurie Hellstrom
Fred Hellstrom
Bruce Talbot
Scott Jackson
Paul Ellsworth
Debbie Jones
Jody Burnett
Mike Houtz
VISITORS: Clair Knight, Sherry Hullinger, Bernard Spiers, Paul Mackley, Reed Mackley, Tom Hales,
Kristen Hales, Kerry Humphreys, Owen Allen, Tim Healy,
Tim Wheelwright, Joe Chambers, Kevin Butters, Kent Butters, Mark Brenchley, Terri Stephenson
1. Closed Meeting – Strategy session to discuss collective bargaining and litigation.
Motion was made by CM Hjorten to go into a closed meeting to discuss litigation. 2nd by CM Humphreys. Voting Aye: CM Boehme, CM Ferguson, CM Hjorten, CM Walker, and CM Humphreys. Motion passed.
Minutes of the closed meeting are protected records and are filed separately.
Motion was made by CM Humphreys to end the closed meeting. 2nd by CM Ferguson. Voting Aye: CM Boehme, CM Ferguson, CM Hjorten, CM Walker, and CM Humphreys. Motion passed.
Pledge of Allegiance: Tim Hjorten
Opening Prayer, Reading or Expression of Thought: Tim Hjorten
Comments or Questions for the Mayor and Council for items not on the agenda
Owen Allen asked about the recycling program. He felt that it shouldn’t be mandatory. He would like to do recycling himself and put the money back into his own pocket. Mayor Clifford explained the contract, the survey, the current recycling bins, the $2.25 monthly fee. The council felt that the program is good, it will reduce landfill costs, and save us in the long run on a community bases.
Consent Items:
Motion was made by CM Ferguson to approve the consent item (a business license to Andy Bolos for an athletic equipment apparel development and design). 2nd by CM Hjorten. Voting Aye: CM Boehme, CM Ferguson, CM Hjorten, CM Walker, and CM Humphreys. Motion passed.
Business:
2. Public Hearing – Accept the annexation petition and adopt the ordinance. Property located approximately 2850 N Hwy 89. (Presenter: Bruce Talbot)
Motion was made by CM Boehme to open a public hearing for the acceptance of the annexation petition and adoption of the ordinance. 2nd by CM Humphreys. Voting Aye: CM Boehme, CM Ferguson, CM Hjorten, CM Walker, and CM Humphreys. Motion passed.
Bruce Talbot showed the location of the two properties located west of Hwy 89 and 2850 N, property belonging to Spiers and Skeens. The proposed zoning is a TOD Zone. The TOD Zone is for property close to the transportation area. These two parcels are coming back into the city. There are no particular plans for the property yet. Mayor Clifford asked for comments from the public. No comments were made.
Motion was made by CM Humphreys to end the closed meeting. 2nd by CM Ferguson. Voting Aye: CM Boehme, CM Ferguson, CM Hjorten, CM Walker, and CM Humphreys. Motion passed.
Motion was made by CM Hjorten to accept the annexation petition and adopt the ordinance (Ordinance 2008-1) for property located at approximately 2850 N HWY 89. 2nd by CM Boehme. Roll Call Vote. Voting Aye: CM Boehme, CM Ferguson, CM Hjorten, CM Humphreys, and CM Walker. Motion passed.
Mayor Clifford: we are excited to have them back into the city.
3. Public Hearing – Consider the disconnection request for property located at approximately north of 4300 N and between 1200 W and 1500 W, also referred to as Towers Sand & Gravel.
Motion was made by CM Ferguson to go into a public hearing to consider the disconnection request for property located at approximately north of 4300 N and between 1200 W and 1500 W, also referred to as Towers Sand and Gravel. 2nd by CM Humphrey. Voting Aye: CM Boehme, CM Ferguson, CM Hjorten, CM Walker, and CM Humphreys. Motion passed.
Mayor Clifford invited the counsel for Towers Sand and Gravel (TS&G) to first present their findings and proposal to us. Following that the City Attorney, Mike Houtz, will present the City’s findings. We will then open it up for public input.
Mayor Clifford: we received a letter today from Weber County to Pleasant View City dated January 22, 2008 regarding Butter’s request to disconnect. Mayor Clifford presented copies to Joe Chambers and to the City Council. Joe Chambers, Attorney for TS&G asked Mark Brenchley, a land planner, to present information. Mark Brenchley: my resume and professional experience is on the back page of my handout. (Mark Brenchley’s handout is attached.) Mark Brenchley: in preface to the discussion all statutory regulations have been met. The official notice was published in the Standard Examiner for three consecutive weeks and I assume the notice for tonight’s notice went out. Jody Burnett: yes. Mark Brenchley: the Utah Code 10-2-502 discusses the legislative body hearing. You as Pleasant View City have been enabled to hear this disconnect request. And there are few criteria given by this statute in your decision making. And I hear you have created your own findings and I would be interested in hearing those. The published reason for disconnect was published in the newspaper and petition. May I read it ‘the primary reason for disconnection is that Pleasant View City continues to attempt to impose disguised zoning ordinances upon the landowners notwithstanding landowners established that they have a prior non-conforming use. The cost of being subjected to ongoing litigation and ever changing rules has increased the economic burden on the property owners beyond the benefits received from being part of the City. Given all the statutory factors justice and equity predominated in favor of the landowners being allowed to disconnect from Pleasant View City. Landowners believe that the property is geographically located such that they and their property could be better serviced by being part of Weber County.’ And on the monitor you see the upper most north western section with the area of 100.87 acres. Joe Chambers referred to a Supreme Court case that was discussed in the prior disconnection proceedings with regard to whether the Supreme Courts said about disconnection. Disconnection is warranted if: 1) procedural requirements set forth in statute are met, was supported by evidence indicating that signatures and petition were authentic and sign by the majority and that, 2) disconnection of area from city was not unwarranted given evidence that city would not be prejudice other than by the loss of property taxes and disconnection would not create islands or peninsulas which would leave the city with a residual area that would have affect on increasing cost of providing municipal services to disproportionally high or unreasonable levels. We wish to show you the exact amount of property taxes that would be withheld from Pleasant View City and the other factors which would show in the petitioner’s minds that the cost to providing services to your citizens is not going to be high or unreasonable with them disconnecting from the city. This public hearing must weigh the social, economic, and geographic interest inherent with private ownership against the advancement of the common good of the community as publicly demonstrated in the city’s actions, plans and achievement of health, safety and welfare for all of its citizens. Petitioners acknowledge that Utah cities have appropriate police powers to protect the health, safety and welfare of its citizens, but expect those entities to follow those guidelines in a fair and equitable manner. This disconnection process gives the property owner due process and be allowed to seek the council’s or ultimately the district court’s objective decision allowing the owner to appropriately develop property within the most accommodating jurisdiction to enhance the entire community and valley. Because the state statute is silent on exactly the criteria that you as a legislative body are to use in that, I have used the criteria that the court ultimately will use in deciding these cases if the petitioners or if you appeal the decision to district court. These figures and these discussions will show that this is not going to harm Pleasant View City as the statutes suggest that the burden of proof is on the petitioners that it will not harm the city by disconnection. Let’s talk dollars and cents. This 100 acre parcel currently pays to Pleasant View City in actual cash receipts $3,053.33. If a disconnect occurs that property tax would be withheld from the city. Of the 10 square mile land map that Pleasant View currently maintains, this 100 acres represents 5% of the incorporated area of Pleasant View and the assessed value of all these four parcels according the assessed value of Weber County Tax Assessor is $1,127,787. You as budget and council members have created your fiscal year budget 2007-08 anticipating a value of $350,942,000. So this property represents .32% of your overall valuation of Pleasant View City. And of the $708,948 expect tax receipts of Pleasant View City this property contributes $3,053 or .43% of your expected revenue budget. I have shown all of the sources on the bottom of the chart. Therefore, from a revenue standpoint the financial withholding to Pleasant View is minute. I now wish to talk about these other findings or criteria that the state statute asks the court to find in these disconnection appeals that justice and equity require that the territory be disconnection from the municipality. The burden of proof is upon the petitioners and we acknowledge that. And that the proposed disconnection will not: 1) leave the municipality with an area within it’s boundaries for which the cost requirements or other burdens of providing municipal services would materially increase over previous years. Removing this 100 acre parcel at the extreme edge of Pleasant View City will not limit your ability to provide municipal services. Neither is it a fact that it will become economically or unfeasible for you to continue to function as a municipality if this were removed within your municipality. This disconnect will not leave an island or a peninsulas within your boundaries if it were to be disconnected. The abutting properties to the west and to the north as you can see are currently in unincorporated county. You can see that slanted line directly above the open area that is the Weber County / Box Elder County line, it’s within 200 feet of the county line. The county in which the area proposed for disconnection is capable, in a cost-effective manner and without materially increasing the county’s cost of providing municipal services, of providing the area the services that the municipality will no longer provide to the area due to disconnection. So we can see the area within this northern quadrant is currently in Weber County. Weber County currently provides services to those areas and their service to the disconnected area would not materially increase their overall cost to provide these services. It may add some legal issues. It may add some political issues, but certainly it doesn’t add any to the financial burden to Weber County’s ability to provide services. Currently Weber County serves the abutting parcels to the north and west and could better serve and regulate the property as the gravel operations in the area. In fact, only Weber County can feasibly and legally facilitate the development of the absolute critical Skyline Line Drive connection to US 89, as discussed in your September 2006 Pleasant View City Traffic Study. Much discussion occurred to create a safe environment, especially safe roads to allow any gravel operation in that area to safely proceed through the city to the destination for this product. And your engineer consultants suggested that ultimately the most important and viable alignment to allow the trucks to bypass the city all together would be to create what they call the Skyline Drive alignment which goes westerly. You see that in second to last page of my report showing the proposed alignment for the Skyline Drive proposed bypass getting people and truck traffic directly to Highway 89. This is currently outside your boundaries already. The actual connection to 89 is even beyond your projected boundaries. It is politically more opportune for Weber County to assist in this effort to make this connection occur within their jurisdiction through eminent domain or through other political means to achieve a very important bypass for these critical gravel pit operations and to assist in securing safe streets within Pleasant View. The document shows many different alternatives that suggest the city consider and this evolution in roadway development, of course 500 W, has a series of development procedures for it. 1100 W has a number of physical, planning, and development items that would enhance truck traffic if it went down that street. But they are all hoping that the Skyline Drive option would be the most desirable and most practical in the long run. Clearly, the properties location within Weber County can facilitate, I believe, a better legal and practical framework to create that critical connection to Highway 89. The statue talks about other relevant factors that the petitioner must show that there would be no impact on municipality and community as a whole. And the summaries in subsection (a) through (h) show that each of these statutory criterion have been shown. The adjoining property owners. What is the affect on the adjoining property owners? We contend that they will not be impacted. The properties to the north and west are currently in unincorporated territory and are not receiving municipal services through the property that could be affected if it was to be disconnected. There is no platted roadways going through property or beyond so they will not frustrate a master road plan for Pleasant View City if there was such road planned to go beyond and service other properties. Existing or projected streets or public rights of way. The Pleasant View City Master Street Map which is part of the adopted General Plan, projects no streets. The proposed Skyline Drive alignment appears adjacent to the property. And is not exactly defined in your report. The general location is shown. The general alignment is shown. And we’ve talked about that previously. Owners of the property are conscientious and continually require gravel haulers to be ever watchful and law abiding as they traverse Pleasant View City streets especially those with significant grades and along residential and school zones. The imposition of the brake area, the brake check area, the implementation of the 15 mph speed limit for trucks, hopefully has contributed to general truck safety for especially 500 W. The next item of municipal service mentioned in the state statue is water mains and water services. Pleasant View City provides no water services to the property. The water that they utilize by the gravel pit is transported to the site by tanker trucks. Disconnection will not effect water mains or water services or increase your cost of providing water services to the greater Pleasant View. Sewer mains and sewer services the same. No sewer service is currently to the property nor is any expected or requested and therefore will not increase any cost of serving all properties in Pleasant View. Law enforcement. The petitioners have had to call Pleasant View City to the site on occasions of vandalism and the officer who came appropriately took the report and nothing, no clearance has occurred from any of theses crimes and they are expecting a similar level of service with Weber County because of it remote location vandalism and other minor crimes is all they had to contend with at this point. If there is a new road there, of course, that could increase with Skyline Drive because access to the property has been increased and maybe it visibility has increased. But currently they believe that by withdrawing from the city they would receive adequate service from Weber County Sheriff’s Office and similarly with fire service. North View Fire could serve it but probably not likely. Weber County has been involved in many brush fires in the area because it’s beyond your boundaries and the petitioners and their employees have contributed much to that fire fighting effort as it has occurred on the foothills and the bench area. Zoning is probably going to be one of the more contentious reasons that was listed in the petition from the petitioners to you as one of the specific reasons that they wish to consider this disconnection. Pleasant View City exercises it’s zoning authority to challenge the use and operations of the property. Gravel pit operations have been maintained on the property prior to 1967 and subsequent owners have responded to the traffic and legal challenges, the current owners and petitioners included. In 1999 the City’s Board of Adjustment acting on an appeal from a group of neighborhood citizens determined that the gravel pit was a prior and legal nonconforming use. Then in December 2005, Pleasant View City enacted Ordinance 2005-16 which regulates all gravel pit operations within the city. Subsequently on October 2, 2007 Pleasant View filed an action against these petitioners seeking a declaratory and injunctive relief in Second District Court alleging that the petitioners, as owners of the gravel pit, were in violation of said ordinance. Court hearings are pending. As a land use planner in the State of Utah for over twenty years, it is my experience that legal nonconforming uses are exempt from subsequent land use requirements imposed by the respective jurisdiction. If the petitioner can show that the use that has been addressed by a new ordinance as been going on prior to the enactment of an ordinance and even if it has been intensified these are all legal issues no doubt the court will address. This is bases for which the petitioners are seeking disconnection from the City and I’m sure both attorneys will have much to say about that issue. So finally, petitioners content generally that any and all municipal services provided by Pleasant View City will not be adversely affected by this disconnection. The property is remote and so underserved by the provision of municipal services, said disconnection and development within Weber County is the only alternative which would allow the property to be a contributor to the community and the valley tax base. Petitioners contend that the absence of City provided water, sewer, streets, the remoteness of main line water and sewer, the remoteness and inadequacy of public safety services, and the difficulty in which the petitioners have in developing appropriately zoned or affirmed nonconforming uses are factors set forth in the Utah Code for the legislative body, or ultimately, the court to consider in granting this disconnection. Any questions? CM Walker: they said there is no peninsula. Looking at this map I see the cross hatch and a peninsula in that shaded area. Mark Brenchley: the peninsula is within, jets into the city. This is a ring of unincorporated territory between Box Elder County and Weber County line and your northern line. It just expands that Weber unincorporated territory. Mayor Clifford: there is a little ring of unincorporated territory between the county boundary and your property. Mark Brenchley: there is a definition of a peninsula by the state statute. This is way short of that definition of peninsula. Joe Chambers: first off let me indicate that underneath the old commissioner quorum of disconnection and I don’t know if you are aware of how the statute used to read, but upon filing the petition and for a disconnection if the city did not want to grant that then we filed an action in District Court and the court appointed three commissioners to evaluate that particular property and make recommendation to the court. Part of Mr. Brenchley’s resume is that he chaired two of those particular commissions and based on his experience in that process and other experiences listed on his resume is one of the reasons I contacted him to assist us in this regard and I assume Mr. Brenchley’s opinion as a professional land planner that this disconnection would be a fair disconnection and equitable and met the statutory criteria. With that being said let me point out a couple of items. First off, I proposed this disconnection because I really thought that it would create a win win scenario for not only my client but also for the City. One of the biggest problems that we have had as a gravel pit operation up there is the safety, save operation of the trucks. It has been my experience, since about 1998, as I represented the gravel pit, the aggregate operation up there that there have been five truck accidents, only one of those involved Butters and the other four were independent haulers coming out of the pit and with regards to those we made a recommendation that the City put a brake check area at the top of the hill, that you lower the speed limit, and that you prohibit shifting of the trucks on the hills, and after considering that for six to nine months the City actually enacted those ordinances and have had that as a safe area. We have not had any accidents since then fortunately and knock on wood because I am superstitious of that. In addition to that, Mr. Burnett spent a significant amount of time and obtained from Mr. Marriott, the Rocky Mountain Power Company, Bona Vista, and Questar the right to leave the gravel pit through what we call the western access and that contributed an awful lot. Mr. Marriott later on revoked that permission and the trucks have been going down 500 W. He turned that western access into a toll road and was actually able to obtain from the consortion of contractors who was the construction company for the light rail transit system a $100,000 fee to allow the trucks transporting their material down that route. It is not a fee that my clients can afford to economically run the pit and compete with Mr. Marriott who now has his operations in Box Elder at the bottom of the Hwy 89, but in order to solve this particular problem over safety I have twice on the behalf of the Tower’s pit initiated a condemnation action to condemn the right of way. The first time we abandoned it at the request of my client because it was uncertain as to whether or not what the cost of that would be. The second time we initiated it I think in about May of 2005. That case is still pending although it will be dismissed pretty soon. We were proceeding along and there was talk by Mr. Baird, Mr. Marriott’s Attorney, that within two or three months he would have property annexed into the City which would solve the situation. That hasn’t come about and after the consortion with the contractors, money paid Mr. Marriott $100,000 for the fee to trespass upon his property. It has been my decision that it is probably not the best source of action. So we went back to the drawing board and we looked at this as to how to get the western access, get the truck traffic out of the city, and without disclosing the conversations that I have had with your various attorneys, which I consider confidential, I am pretty well satisfied that the advice that you are getting from your attorneys is that Pleasant View City does not have the authority to condemn that western access because it lies outside your City. If we were to disconnect, Weber County would have the ability to do that, whether or not they will do that, I don’t know, but Weber County would have the authority to condemn that land. Weber County would then have two gravel pits on the foot hills of Ben Lomond that they would have to apply their health and safety excavation ordinance too. It does not give Butters cart-blanc operation to simply run a muck upon top of the hill. They will still be subject. There are a couple of legal points that I want to address real briefly. First off, if you read the statue, Weber County’s interest in commenting, I think the statutory language says limits their comments only to those services that the city will no longer provide to the property. So, as you consider their letter take into account Mr. Allred’s comments in the context that when he says Weber County has no way to provide water to this property, Weber County has no way to provide sewer services to the property, well, the city is not providing water or sewer to the property in the first place, so to me that is a non-factor based on the statute. Limited amount of police protection; although his comments as a deputy attorney may have some weight. I’m curious to as what Weber County Commission would say when they were asked for a comment on this, but the level of police protection would simply be about the same we’re getting as Mr. Brenchley indicated there have been a couple of fires up on that mountain, that because of the size of the equipment we’re operating with, we were able to respond and actual keep the fire from hitting larger and I think that will continue. Last thing on Mr. Allred’s letter is he says the property is likely to be residential property in the future. The County is not seeking to provide these services. It is too speculative to know what’s going to happen in the future, just the same as this Spier’s and the other parcel both were disconnected from the City. They have come back into the City underneath some type of ordinance. We have no way of knowing. We would estimate having a good thirty years and don’t quote me, this is my estimate as an attorney, not as a gravel operator, but I think we have a good thirty years worth of reserves up there and I don’t know anybody who could put on a crystal ball and see what is going to happen in thirty years down the road even if it is ten years worth of reserves that still is such a long time that it would be hard to say what is going to happen. Now, from a procedural point of view, the statute, the controlling statute, that you’re operating under say that within 45 calendar days of this public hearing the municipal legislative body shall, that is mandatory by the state legislature, shall determine whether to grant the request for disconnection and if you determine to grant the request, adopt an ordinance approving disconnection from the area from the municipality. It doesn’t say anywhere in there that you are going to make a findings, you may want to, your counsel may tell you to. From my position I need to be very careful about this point. Though I have seriously been concerned about the due process issue for my client when we have to come before you, who is a public body, ask your permission to disconnect were denied that permission if were not granted it. Were denied that permission and then you make a whole bunch of findings that we go into district court on I don’t think the statute envisions that. I think you and I go into court, work on an equal footing, and so I would respectfully, just for the record here point out that I think it would violate my clients rights to due process for you to make findings that the court would then try attach anything presumptive level too. This is not a land use decision underneath the LUDMA, Land Use Development Management Act. We are not operating under Chapter 9a of Title 10. We’re operating under Chapter 2 Title 10 and the statute very clearly says that you simply grant it, if you grant it you create an ordinance, if you deny it then it is denied. So I say that, not to try to tell you how to do your job, I apologies if I’m coming across that way. I say that because I want the court, if you do deny it, I want the court to understand from the very outset my concerns to due process. I was driving down from Logan with my son who is also an attorney and I was trying to explain to him that I thought how unfair it would be if I sued him and the court asked me to make findings or proposed findings. He goes to court and then he has to rebuff that. There is a basic unfairness about that type of situation and I think when the state legislature took out the commissioners form of recommendation what they were doing is they said the cities ought to get first crack of this. They ought to determine if they want to grant the disconnection or not grant the disconnection, but I think its limited to that and I would respectfully ask you to reframe from making any findings because I think that would not be within statute. Thank you. Mike Houtz, City Attorney: it seems that there is a basic disagreement on the way we view this. We view this as a community and the property as the whole and not this one little piece and what the intention of the community has been for a long time. We’re not looking at this piece alone, but view the big picture the city has been after. Could you put up the General Plan and show the dark purple area. Bruce Talbot showed the parcels being discussed on the General Plan. It is important I think and I appreciate counsel’s honesty in why we are even here. And that cause, they believe that we continue to attempt to impose disguised zoning ordinances upon them. Right now we have asked a court to decide whether we can and to what extend we can regulate a nonconforming use. I don’t believe the law was correctly stated to you earlier, but I am not going to go through a legal argument on that. The landowners, if they are allowed to disconnect, will have the same argument with the County. They will still be a nonconforming use there, and still have to be a determination made to what extend the County can regulate them. We do acknowledge that the Board of Adjustment on the 13th of September, 1999 did say that this was a nonconforming use. When we look at this property as a whole, it’s important to show that the city has long intended to annex property that is west of, and south of, that landowner’s property. The City always intended and it is part of the Master Plan to have that area to the west be annexed into the City, to the west of this property. If you look at the area that is dark blue-purple color that would be an area that’s been long discussed for annexation into the City and in fact on September 10, 2004, Randy Marriott filed a petition to annex 145 acres plus into the city in that area. That petition has not be acted upon to this time, but there have been detailed discussions between the City and Mr. Marriott about annexing that property into the City and what might be possible for development of that property. The City enacted what has been called the MPC Zone, the Master Plan Community Zone, which is that dark blue-purple area on the General Plan. The Rocky Point Special development District is what that is known as. With Mr. Marriott, there has been talk about operation of a gravel pit in some portion of that. There have been talk of long-term and short-term development areas in that 145 plus acres but there have been a lot of discussion of annexation and development agreement and in fact there is anticipation that that will be done. On June 14, 2005, the City Council approved the Rocky Point Special Development District and that is the way it shows now on the Master Plan. It’s my position, and I believe that it is the city position, that when that is annexed in, there will be a creation of a peninsula in the City or an island which is prohibited under 10-2-502. Bruce Talbot put up the subdivision plan of Deer Crest Subdivision at the request of Mike Houtz. It is really important that we understand the development that is also going on around this piece now. This is Deer Crest Subdivision. It is my understanding it has been approved by the City Council and Phases 1 & 2 are going in right now. This subdivision, this property, is right below the property that the landowners are seeking disconnection right now. So, there is a development that has been approved that is directly next to this property. One thing I agree with Joe is, that over time you can’t always tell what is going to happen, but over time what happens is developments goes to where development isn’t at the present time. And right now development has gone up and does border the south end of the property that is seeking disconnection. The top of Deer Crest would be 4300 N or Skyline Drive, anticipated in the future. So there is property directly adjoining. To say that a gravel pit would have no impact on this, I think is just not true. So, to the city and to the staff it makes a lot of sense that the City have the ability to balance the needs of business and the needs of residents that are going to be living in this area. It’s important to understand that development in Pleasant View has reached the area we are talking about. We call it the northern end of the County and it is kind of out in the middle of nowhere, but it’s really not any more. Development is right at the doorstep of this property. Now, just to the east of that purple piece the City has had ongoing dialogue about having an MPC community in that area and it is ongoing now. In fact there is going to be development in the city right now on the south and eventually on the east. We look at annexation expected on the west. This whole thing will be surrounded by the City and by development. So, I don’t think it is very wise to look at this piece as one little piece and say there is nothing really around it and it doesn’t affect anything, because it does. The closest water services to this property now are in Deer Crest. The closest sewer to the property are in Deer Crest. You can see that is not very far away. I asked the city engineer what he thought and he said the nearest sewer in Deer Crest to the property line is approximately 850‘. The closest storm sewer to the property is approximately 1100’. Those are important to understand, that we are right up next to it now, when we talk about adjoining property owners. Existing or proposed streets; obviously, all of us agree that the extension of Skyline Drive or 4300 N is major. I agree with Mr. Brenchley that that is a major development. So, the city has taken a very active part in trying to get this on the road plan for the future of this area. And the Wasatch Front Regional Council has provided funding to the City already and the City is to sponsor the project. This is now listed on the 2030 long range transportation plan. I didn’t understand what it means to be on the Wasatch Front Regional Council Plan. I have asked Bruce Talbot to explain what it means to be on the plan. Bruce Talbot: there are three things to go through to receive outside city funding for transportations projects. One of those is to become a part of the long range plan of the WFRC. In order to receive both state and federal money assistance you have to be on the long range plan. We’ve gone through the effort of getting Skyline Drive included on that long range plan. The 2007 -2030 plan has moved up on the planning schedule and instead of it being on the end of the project, it is now at the front of the projected projects. Also, in order to receive federal funding you have to have your street functionally classified. That means that you go through the steps of having a transportation engineer go through and evaluate what types of long range traffic it will provide, and then you have to give letters of support from the county, we received a letter of support from the Box Elder County Commissioners. This road has been functionally classified as a collector road, which is the minimum road size you can have for funding on a federal level. We have also gone through the step of applying twice now for a specific STP funding, that’s surface transportation program, for receiving funds to build Skyline Drive. To get on their long term list, there are well over a hundred projects yearly that are presented and requested for funding and they typically only fund about fifteen or less. We were successful in getting on that list for additional funding which means we are on that list now and can be considered every year for the next fifteen years until we’ve completed that project or withdrawn. We got the initial $10,000 dollars for engineering to get going on the specific design and location in the city. Bruce Talbot showed the audience where the proposed road will go. Bruce Talbot: from the east on 4300 N and on out to Weber County and then through Box Elder County and then dropping down by Highway 89 by the interstate exchange. That is the design of the road that they looked at. And the city has just resubmitted the 2008 application. Bruce Talbot was asked by Mike Houtz to show on the overhead the page that shows the funding that was given for this project. Mike Houtz: the money that was already allocated has been specifically used for the engineering and design of Skyline Drive. Todd Walker: is the County on the list for the Wasatch Front Regional Council? Bruce Talbot: not specifically. The County did not apply for any money to do this project. Mike Houtz: the list shows that the money is specifically for Skyline Drive. Whether this piece of property is in the City or not, the City will remain very concerned about the safety of city streets. I don’t remember history the same way Joe Chambers does. I don’t remember Butters coming forward saying you better set up a new ordinances for safety reasons. It doesn’t really matter who initiated it, but I certainly don’t remember it that way. There is a brake check area at the top of 500 West. The City has obtained funding for an officer and trained him on all issues that deal with heavy trucks. The City is very active in trying to have safe streets because even after this ordinance was in place there was a truck that came down through City property, broke the granite sign that was right out on city property, went across Elberta Drive and ran right into a house. That was after these ordinances and when you read the police report it looks like what happened was that the driver got out of gear and then couldn’t get it back in and came right down the hill. The City has enacted speed ordinances. The City has enacted a truck route through the City that we think is the safest way to travel. It was mentioned already the City got a study to determine the safest route off the mountain and I think there is a concern from the staff level that if this disconnection is granted, the perception would be the City wouldn’t be able to still control it’s own destiny (streetwise) as they do now. Whether that’s reality or perception, I think that is very real. Talked about water services, talked about sewer services, obviously if this property is disconnected there would have to be some way to deal with storm water and I would say, even if it is in the County, the City would have to review storm water issues. Law enforcement. Law enforcement would change from the city’s police department to the county sheriff. While there may not be many calls they certainly wouldn’t be as rapid of response time because the only way out there is on city streets through the City. Zoning. Their probably right. There might be some zoning questions and they might be big zoning questions but the reality of the situation is that it’s in an A-5 Zone in the City. The City does have an excavation ordinance. The City had an excavation ordinance before they talked about it. Here they represented that the 2005 was the beginning of the Excavation Ordinance. I would submit that if you go back in history and look at this property the previous owners agreed to obey any ordinance that came upon this property and they don’t get anymore rights than the previous owner had. Municipal services. Fire and emergency services are provided right now by North View Fire Agency. If the County takes over they will be provided by Ogden City. Obviously there would be a different response time. While there hasn’t been much need for that but when it’s needed you might like a close responder. The other issue that is very real in this setting is what happens in the future to this piece of property. Tonight that has been skirted over, I think, by the other side. In fact Mr. Chambers said that we just don’t know and to a degree that might be true. I have been in plenty of public meetings with them where that was not what was said. What was said was they intend to develop this as anybody else would as residential property when they are done and if they do that they are going to end up having to do that in the City. So when I look at it long term, which I do think we have to take a long-term view and not just the short-term. When we look at the long-term view too, it seems to me that in order to develop this you are going to have to come back into the city. Its irony of what happened earlier tonight that somebody went out and then almost quickly came back in. It seems a bit silly to me to leave and then come back but I think the City really has to look at the future and see what there is here. I have talked about many things under the statute. Number one would be the viability of disconnection. If you call this a short-term issue you would have to say it was viable. If you look at the whole picture around that piece of property and the long-term I don’t think it’s viable. I don’t think it makes any sense at all if you look at justice and equity. If you look at it from their point of view which is only their piece of property I can see why they think justice and equity weighs in their favor. If you look at the annexation, the development, and all those things that surround that property, which there is going to be annexation to the west, there is development now to the south, there is discussion of development directly to the west, I don’t see how you can look at the piece just in a vacuum. I just don’t see it. I think justice and equity weigh in favor of keeping this property here because is does impact on neighboring property owners, it does. And there ought to be one entity deciding all those issues and weighing business and residents together. They have said the property will not create an island or peninsula. I don’t think you have to look very far into the future to see, with annexation, that is exactly what it is going to create. And there is an annexation petition before the city right now. That’s the way I see it from the staff point of view. Mayor Clifford: any questions from the general public at this point in time? Terri Stephensen (Standard Examiner): I would like an extra copy of the Weber County’s letter and a copy of the map. Tim Healy: Members of the Council, Mayor Clifford , and the representatives from Towers Sand and Gravel, I was exited for a few minutes tonight when counsel for TS&G stood up and announced that he saw this as a win win situation. I anticipated with some excitement at that point that he was going to announce that TS&G was going to find a separate way out of the City to haul that sand and gravel and not continue to traverse the city streets. Unfortunately that was not the win win situation that he mentioned. They talked about the possibilities with the County, none of that is concrete in anyway. As I understand it the disconnection would continue to involve the use of Pleasant View City streets to haul the gravel and other materials by TS&G. Is that correct Mr. Chambers? Mr. Chambers: it’s a public street. Tim Healy: I see a real irony in the presentation that has been made on behalf of disconnection that is, it’s not going to affect the City at all. The City is not going to suffer any loss or inconvenience or what have you. All we are going to do is lose the revenue that they have been paying to the City and by the same token have them take the approach that by being outside Pleasant View City, it would not be subject to the ordinance of the City, which I dear say 99% of the residents, if this matter was put to a vote, the vote would be in favor of banning TS&G from the City streets of Pleasant View. Now, I recognize there are legal arguments to deal with and the right of access and so forth, but for them to come before the council tonight, express the argument that the disconnection is not going to be a disadvantage to the City and all you are going to do is lose is the property tax, they can’t met the burden of ongoing litigation and other concern they have when all of the profits that are coming out of the sand and gravel pit, not one penny of that, as I understand it, is going to the City. Other entities are collecting the business licensing and sales tax. It seems to me that it is a win situation for TS&G to disconnect, but a definite no win situation for Pleasant View City to allow that disconnection. Thank you. Kevin Butters: I want to stand here as a concerned citizen and not as a manager of any of the entities. I have sat in this room more times that anybody in this room including the attorneys, my boss, the city council. I have sat here time after time through three or four city councils watching this mess go round and round and round and round and round and lawyers argue back and forth how this and that and the other thing and they all think they are right. With all due respect, we have a nonconforming use. The gravel pit is there. We need gravel pits because if you don’t grow it in your field, you mine it. You talk about all this development that around there, all that development that’s coming upon that thing, it needs a road, it needs water lines, it needs all these materials that come from the gravel pit. Most the streets in Pleasant View are paved off that hill. The parking lot outside is paved off that hill. You want the gravel pit to go away. What you really want to go away is the trucks. Every time we try to get some type of proposal to get rid of the trucks, instead of getting support from the City Council, it seems like there isn’t any support, at least from my perspective. Their too hymhawed about how do we win this single argument and how do we win that argument. Even when they come out and say that we are a nonconforming use, everyone wants to back away with it. It’s my understanding, that after the City made that determination has the obligation to defend our nonconforming use, not to continue to attack it. We wrote out, you guys got $10,000. I stood here as general manager of TS&G and offered $70,000 towards the road out the other side. We filed condemnation actions. We couldn’t get the City to go up and support it. They are more likely to want to support that fact that it doesn’t happen. The same day we were in court, you had a truck that wasn’t going to our gravel pit, going to a city project taking the long way around to avoid any appearance of evil, I suppose, come crashing down from a city project on the way down to Parson’s gravel pit or truck miles through somebody’s house that didn’t come from our gravel pit. Lots of irony. I see the gravel pit coming out. If we ever get to residential, thing probably would come back. It might become something else. It might become, I know I’m real hip on this training that I have had for the last couple of weeks and become Butter’s Repor Training Center. I will be glad to share that with anyone that wants to know what I am talking about. You need the gravel pit. You probably don’t need it in your back yard. The easiest way to get rid of it is to fairly and adequately regulate it, allow it, help to get the road out the other side, take the roads off the streets, exhaust the reserves, because every time you battle the thing you take all the money that could possibly be used. I don’t think it is a $17 million dollar road. I know what we paid Joe to try to get a road out the other side. I think we could have one heck of a road out there the other side if with what I have paid and add what you guys had to pay him and indirectly, its going about this the wrong way. So obviously we think disconnection is the best way to get some results since the council said that your counsel said you guys can’t do it. We still want to try to get it done. Talk about roads. Why would anybody in our position, why would we be opposed to any of these traffic plans that you are coming up with. Do you think that we don’t want to go out the west side? All these things you say don’t make any sense. We want the same thing you guys do, but instead of helping us do it, everybody wants to battle us. So were just trying to get to where we can get some help to solve the problems because you guys don’t want to help us. Anyways, my comments are as a concerned citizen and not as a manger of anything. Take it for what it is worth. Joe Chambers: I appreciate Mr. Healy’s comments. I guess, to try to reconcile our two comments, I would have to say that my approach and what I am saying in terms of this is limited on this statutory factors that the legislature has set forth in asking what the court would look at, not a lot of other comments. Although I’m discounting them, I’m just saying our comments were focused mainly on the factors the court would look at. The opinion memorandum decision that Judge Jones issued in the Mackley, Bert Smith, Spiers disconnection, I would urge you to read it, take time, if you need a copy I will get you a copy. It’s an interesting decision. I think the city attorney is making the same fallacy in this case that they made in that case and that is talking about what is going to be rather than what is right now. And so I think if a court were to look at this on the bases of equity, they are not going to speculate as to whether or not you get that property annexed in. That property petition that Mr. Marriott has had has been pending, how long, and it’s not there. If it was a done deal, we would have a road way out of there through that property because the plan would provide. I have some concern over Weber County’s nonparticipation in Skyline Drive because it goes back to it doesn’t matter how much money you guys get, if what I have been told, you don’t have the power to condemn property outside the City and you need to get them on board. So the fact that they are not on board concerns me. It would seem that if Mr. Allred and the Weber County Commission could get on board we might have a problem solved there. And for a number of reasons Mr. Healy is acutely aware of what a condemnation action is, we have spent the time and effort, I floated a proposal to the City that if you would give up your sales tax that the gravel pit had, we’d pick up the condemnation action and move that forward and I haven’t gotten a response on that but these things are costly and you are expecting Butters to solve something and they only have so much money there. Mayor Clifford: excuse me, what sales tax? Joe Chamber: there is a certain amount of sales tax that you are getting. Mayor Clifford: you are misinformed. Joe Chambers: I will find out were the sale tax is going. Mayor Clifford: it is going to Harrisville and point of sales. You sell mostly wholesale. It goes through your hauler contracts. We get nothing from you. Kevin Butters: I fill out the forms at point of sales. Tim Wheelwright: I am on thin ice because I am even here tonight. If my wife knew that I was standing up to make any kind of public comments she would ring me up. But I feel that I have some information that will be useful. It’s mostly along the lines of just some things that I have learned in the very short time that I served on the city council that I think will be valuable and an insight for you. First of all, Bruce represented the City in objecting to an annexation petition that was filed by Farr West, or by a private developer, to annex into Farr West on property that is immediately adjacent to Weber Industrial Park. That property was originally in Pleasant View and Pleasant View allowed that property to be disconnected so that it could be included in the development of the Weber Industrial Park. When we received notification that the property was to be annexed into Farr West City, we immediately became concerned because that property had historically been in Pleasant View. We went before the boundary commission and stated very strenuously our objection of that property going to a neighboring jurisdiction. That it would be proper to come back into Pleasant View if the County was not going to use it. Well I can just tell you that we were defeated 7 to 0 by the boundary commission. They were not persuaded by that. The point that I want to make, once you decide to let that property go, don’t expect it to ever come back into Pleasant View. There is a different dynamic in that area in that it is not likely that another city would necessarily be looking to petition that particular property into their jurisdiction limits, but just remember that you are fore footing a tremendous amount of control over that property and what happens on that property once you allow it to go to another jurisdiction and I would be very concerned about that. This whole dispute has absolutely nothing to do with roads. It has everything to do with reasonable regulation of property and that is what this is all about. You have a party that is saying essentially the City has absolutely no right to regulate what they do on their property. And there is just a fundamental disagreement with that. They are going to have a fundamental disagreement with Weber County. Now is that unreasonable? Is that unexpected? Absolutely not. All you need to do is look at what happened with the previous disconnection situation that we had in this City. With all due respect to my friends, the Mackey’s who were the driving force behind that disconnection, it is very interesting when you look back at history that was nothing but an exercise in philosophy. That is all it was. It wasn’t a practical way to solve the problem. Every one of those properties, except for the Mackley property, is now back in the City or in the process of coming back into the City. That is because for development to occur, reasonable development to occur, on this property, it’s going to take place in the city and private property owners can not expect that they are going to be treated any differently when they go in front of the County on zoning and land development issues. So, I would encourage the council to take our experience to heart and to remember what we hopefully have learned from that experience that - why did we waste all of that time, all of that money, all of that effort, only to get to where we are today. There is still a property that has been disconnected and continues to be outside of the City and its ability to regulate but for the most part all of those properties are back and people have recognized that it is reasonable for cities to impose reasonable restrictions on development. I just wanted to share those two experiences with you because I think it is important. I did not fully realize that when I was sitting in that chair and hopefully that information will be useful as you make your deliberation and decision. Thank you. Mayor Clifford: any other comments? Kevin Butters: first of all, I wanted to point out on this paper that was provided by Mr. Brenchley, you see that there is a right of way on there. I want to talk about how planning and foresight doesn’t always work. Because that actually shows that right of way that was owned and the City gave back to the property owners that you guys used to have. I thought that was pretty ironic. Mayor Clifford: show us what right of way we are talking about. The other comment that I wanted to make really quickly is that I think the reason the properties came back into the city is that maybe the city decided to start being reasonable. Mayor Clifford: I will entertain a motion to go out of the public hearing.
Motion was made by CM Ferguson to end the public hearing. 2nd by CM Hjorten. Voting Aye: CM Boehme, CM Ferguson, CM Hjorten, CM Walker, and CM Humphreys. Motion passed.
Mayor Clifford: any comments from the council? CM Boehme: just one comment from me. A lot of this information presented tonight is new. I am familiar with some of it, a lot of it was new. It will take a little time for me, at least, to digest and look through. Jody Burnett: I appreciate that. My recommendation as your counsel would be that you try not to make a decision tonight and maybe schedule on your next city council agenda for you as a council, after having time to review that information, to discuss, deliberate, and reach a decision. I appreciate Mr. Chambers’s remarks and I understand that but I like to do what judges do to us, which I do like to put the burden on the parties coming before you to propose findings in support of their position. And I would recommend that if there is time on the agenda on February 12th, was the target date, that maybe you would consider requesting that both Mr. Chambers and Mr. Houtz to submit proposed findings in support of their respective positions and just any kind of little written submittal they want to make with those and maybe get those to the City by Friday, February 1st so that Laurie could get it and get it into your hands a week in advance of that so that you every thing in addition to the material submitted tonight so it would give you enough time to review that information and then come back and discuss it as a group as part of your regular agenda on February 12th and hopefully with the intent of making a decision that night. CM Ferguson: do to that fact we do have several new members to the council, I think that would be a great idea. CM Hjorten: it is my understanding that we have 45 days to make a decision from today. Jody Burnett: we do. I’d like to ask you to move that up. The reason for that is because of what the statute would normally contemplate was holding this public hearing 30 days from the last publication. I do want to note as a matter of record that I appreciate TS&G and Mr. Chamber’s cooperation because I think the last publication was Saturday, December 1st and thirty days would have put it smack dab into the holidays and none of us wanted to incur that potential brain damage so they have cooperated with us in extending that time. So I would like to reciprocate on the other side by seeing if we could speed that up a little bit and get them to where they would have been essentially the same time frame. CM Hjorten: in fairness to the petitioners I think we ought to move. Jody Burnett: It makes sense for you to have an opportunity to review that information. To consider it by February 12th, that would put us where we would have been otherwise on the same time table. Mayor Clifford: we will entertain a motion.
CM Boehme: I make the motion that we take this item under advisement and continuation until February 12, 2008 City Council Meeting and that both legal representatives from both sides submit written findings by February 1, 2008. That should give us sufficient time for that following week to look through the material. 2nd by CM Ferguson. Voting Aye: CM Boehme, CM Ferguson, CM Hjorten, CM Walker, and CM Humphreys. Motion passed.
CM Hjorten: it would be wise for us to a resolution on the dispute over sales tax. Mayor Clifford: if it is hiding in there somewhere I would like to find it.
4. Country Fields Subdivision Phase 2 – Request conditional acceptance and begin the two-year guarantee period. Property located at approximately 1100 W Hwy 89. (Presenter: Bruce Talbot)
Bruce Talbot: there is letter from Jones & Associates dated 1-18-08. There is an agreement from Brent Bailey for the offsite storm drain system. We also have the as-builts. CM Humphreys: all the sidewalks are not completed. Bruce Talbot: the ordinance allows this exception if at least 70% of the sidewalks are in.
Motion was made by CM Hjorten to grant conditional acceptance to Country Fields Subdivision Phase 2 and begin the two-year guarantee period subject to the recommendation from Jones & Associate’s letter dated 1-18-08. The as-builts have been received and the city has an agreement from Brent Bailey dated 1-22-08 regarding the detention basin issue. 2nd by CM Boehme. Voting Aye: CM Boehme, CM Ferguson, CM Hjorten, CM Walker, and CM Humphreys. Motion passed.
5. Appoint planning commission member.
Motion was made by CM Ferguson to appoint Tom Hales to the planning commission with the term of January 1, 2008 to January 1, 2011. 2nd by CM Hjorten. Voting Aye: CM Boehme, CM Ferguson, CM Hjorten, CM Walker, and CM Humphreys. Motion passed.
6. Determine the councilmember’s responsibilities.
The councilmember’s responsibilities are set forth as follows:
Mayor Doug Clifford
Administrative Oversight
Newsletter/Website/Public Information
North View Fire Dept. Board
WACOG
Public Relations
Urban Wildfire
Ordinance/Legislation Coordinator (w/ Bruce)
Mike Humphreys
Public Safety
Storm Sewer
Sanitary Sewer
Culinary-Secondary Water
Economic Development Committee
RDA – Taxing Entity Committee
Mae Ferguson
Community Activities
Community Beautification
Youth Council Rep.
Planning Commission Oversight
Betterment Committee
Tim Hjorten
Mayor Pro Tem
Senior Citizen Rep.
Emergency Preparedness/CERT
Scott Boehme
Budget (primary)
Solid Waste/Recycling
Economic Development Committee
RDA-Taxing Entity Committee
Todd Walker
Open Space Acquisition Coordinator
Streets/Sidewalks
Parks
Recreation
Budget (secondary)
7. Re-appoint Police Chief, Recorder, and Treasurer.
Motion was made by CM Humphreys to reappoint Scott Jackson as Police Chief, Laurie Hellstrom as Recorder, and Debbie Jones as Treasurer. 2nd by CM Hjorten. Voting Aye: CM Boehme, CM Ferguson, CM Hjorten, CM Walker, and CM Humphreys. Motion passed.
Report on prior actions
Adjournment. 9:15
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