We finally have the results of the Reconsidered Advisory Opinion for Wohali’s current application.  Unfortunately, this time the news was not favorable to the Coalville City General Plan or the mission of CFRG.  So why the complete turn around? Could it have been the developer’s influence on the updated Coalville City Code???

 

The Original

If you will recall, when CFRG (Coalville For Responsible Growth) received the results of the original advisory opinion from the State Office of the Property Right’s Ombudsman, the results highly favored the legal code interpretation of CFRG’s attorney, Polly McLean.  The conclusion read as follows,

“Wohali’s new Application was submitted as a land use application seeking approval under existing zoning. The City must therefore comply with the mandatory provisions of its land use regulations and apply the plain language of those ordinances in regards to the application. Because the Agriculture Zone plainly restricts uses that are not incidental to agricultural use, a recreation facility with support facilities does not include a high-end luxury private-member resort and associated commercial resort amenities. Such a resort use is not otherwise permitted in the Agriculture Zone, and the application is therefore not entitled to approval as proposed. “ (Pg. 12 of 12).  

You can find our article about the original advisory opinion here: original opinion

 The Reconsideration

After the original opinion came out, it was discovered that the original version of the Master Planned Development (MPD) code had been used in the opinion not the MPD code adopted 8/30/2019.  Understandably, the applicant (Wohali) filed a request for reconsideration with The Ombudsman. Shortly after the original opinion was released, the Mayor informed us of a meeting between the city staff and the Ombudsman to discuss the reconsideration.  However, it was not until after the Reconsidered Opinion was released that we became aware that the developer’s attorney also attended the meeting in tandem with the city staff. Our legal council was not included in the meeting and we are unaware of the discussions that took place.

We actually find it very fortunate that both versions of the MPD were analyzed by an outside legal expert.    We now have a clear indication of the language favorable to resort development that has been inserted into our new code.  Wordings such as “including mixed use development”, “resort units” and “with exceptions for support accessory uses in mixed use developments” were mentioned numerous times during the Reconsidered Opinion as justification for the complete turnaround.   The Ombudsman’s Office took over a month to review and revise their original opinion.  This new opinion stands in stark contrast to that of the original.  The differences of the two conclusions are in bold font for ease of comparison.

“Wohali’s new Application was submitted as a land use application seeking approval under existing zoning. The City must therefore comply with the mandatory provisions of its land use regulations and apply the plain language of those ordinances in regards to the application. Because the City has enacted a regulatory scheme for Master Planned Developments that expressly allow for mixed use developments as a supplement to the permitted uses listed in the City’s zoning districts, a golf resort as a mixed-use development, and its amenities as supporting accessory uses, is allowed in the Agriculture Zone. The City Council, acting as the Land Use Authority, must review the application under applicable MPD standards. If the application is found by the City Council to comply with MPD standards and is supported by the required written findings, it is entitled to approval.”  

Page 6 paragraph 4 of the reconsidered opinion contains language that drives home the differences between the old and new MPD Provisions in the Coalville City Code:

“In other words, whereas the former regulatory scheme seems to have viewed MPD’s cautiously as a “trojan horse” in which uses incompatible with the zoning district might be introduced, Coalville’s existing regulatory scheme for MPDs intentionally provides flexibility to existing zoning in anticipating larger, mixed use developments…”

You can find the complete Reconsidered Opinion here: Reconsidered Advisory Opinion

 

True to Our Word

As promised we will support the Reconsidered Opinion and encourage the council to vote in accordance with the Ombudsman’s recommendations.  We have invited the Ombudsman to the next council meeting to discuss his opinion as well as answer any questions the Council may have as they move forward with an approval.  We are working with our attorney on a list of applicable ordinances that were not featured in the opinion but need consideration and will present this to the council as well.

How Did This Happen?!?

In a staff report dated March 18, 2019, Coalville City Staff, Don Sargent, provided a list of Wohali’s requested amendments to Coalville City’s MPD provisions:
“MPD Amendments
The applicant is requesting amendments to the Master Planned Development (MPD) provisions in Title 8 Chapter 6 of the Development Code. The amendments are being requested to address the proposed village core design program including the following:
• Reductions in lot size, frontage, height and setbacks.
• Provisions for commercial support and accessory uses.
• Provisions for nightly rentals.
• Clarification on density calculations, allowed uses, parking standards and other MPD considerations.
• Applicability for implementing a Development Improvement Agreement (DIA) or other agreements.
The City is currently in the process of updating the development code, including the Master Planned Development provisions. Staff will need to review and evaluate the proposed amendments for consideration and recommendation to the Planning Commission.”
You can find the entire staff report here:  Staff Report 3/18/19
It is clear to CFRG that the majority of the new MPD code (effective date 8/30/2019) came directly from the Eastern Summit County development code 11-4-12.  Only a small section of the original Coalville City MPD Code was retained so it is very simple to locate the language that was inserted.  Comparing this with Wohali’s list of requested amendments it is clear that the developer had extensive influence on the final product that is now the city’s MPD Code. It was passed through council in two short meetings with relatively little discussion. According to the minutes of those meetings, the most critical portions of the new MPD code and the language favorable to large developments were never pointed out or discussed.  It was passed in a meeting where only three members of the council were there to cast a vote. We will dive into this process further in future blog posts.  This updated version of the code can be accessed here: Coalville City MPD
One of the “special exceptions” (listed above in bold print) requested by Wohali is what was used as justification for a reconsideration of the original Ombudsman Opinion.  After considering the revised code, the opinion was reversed!  It raises concerns that the new code was written to favor the project.  During the revision of the MPD provisions the developer had unlimited access to staff – as much as they were willing to pay for – while the public and even the Planning Commission/Council had relatively little.  Based on this and many other factors, CFRG believes the line between developer and city staff has been crossed too many times!!!

What Can Be Done?

The issues involved in this reconsidered opinion have brought to light a dire need to separate the responsibilities of code writing and project management to avoid any perceived conflicts of interest.  Up to this point, city staff member Don Sargent has been filling both roles.  Additionally, it is very apparent that our newly adopted MPD Code and the broad interpretation by the Ombudsman leaves all zones of the city wide open for nearly any type of resort development.  This is out of harmony with the desires of the majority of surveyed citizens and the Coalville City General Plan which can be accessed here: General Plan
CFRG strongly urges concerned citizens to contact their council members and request these problems be rectified immediately!!!  We need to separate responsibilities of city staff and repeal the new MPD before it’s too late – again!!!