City Council Meeting - November 17, 2015

Public Comment
Julie Sessions - Thanks the Council for all the time spent on city business. Asks us to consider the General Plan and Design Guidelines when voting on Rosegate. Primary use of that zone is for commercial business. Intended to be a harmonious group of shops. Provides for commercial and retail uses within the community and provides residents with employment opportunities, retail goods, and office space. Should directly benefit the residents of the community. Supposed to be less intense than neighborhood retail. City values tranquil environment and want to keep small town atmosphere. If building goes in place, won't allow her kids in the area by themselves. Council doesn't represent Blu Line, but to represent the community. We should uphold the guidelines. Don't be bullied into making a poor decision that could potentially harm our city. Would donate towards lawsuit and would ask for her brother's (attorney) advice on our behalf.

Consent Agenda
The minutes from the October 20.2015 City Council meeting were approved.

City Reports
David Bunker - BYU basketball city night is January 30th and discount tickets are available. Jr. Jazz signups continue through end of the month. Games begin in January. Ski bus signups are also happening now. Story time is happening tomorrow morning. City puts out a weekly update, so if anyone wants the emails, contact the city office.

CM Rees - Planning Commission met and finalized their recommendations for changes to the Design Guidelines. This will now come to the City Council for discussion and review.

Mayor Gygi - Finance Committee meeting but no proposed changes to budget.

CM Augustus - General Plan was supposed to meet Friday but was postponed as no quorum present.

Review/Action on Canvass of 2015 Election
Utah County has completed the canvass of election, including counting all ballots received. The end results were as follows:

Jenney Rees - 1275
Mike Geddes - 1098
Ben Bailey - 1074
Angela Johnson - 1052
Paul Sorensen - 704
Brian Miller - 196

Percentages of turnout:
CH01 50.95%, 404 votes cast
CH02 40.66%, 407 votes cast
CH03 32.43%, 397 votes cast
CH04 40.00%, 466 votes cast
CH05 33.77%, 336 votes cast

Review/Action on Preliminary Plans for Rosegate
Bruce Baird - Attorney for Rosegate developer. Process tonight is somewhat unusual. Usually there is a staff report and staff presentation, and staff will list issues, if there are any. Staff report doesn't list any issues. Feels pity for staff because they are in the middle of a heated issue. Has only commendation for staff actions. They would have responded to issues brought up in staff report, but there were none. Received 4-1 recommendation from Planning Commission that they were in compliance. Has asked how the application is not in compliant with city code. Received a traffic report from the city last night. This is a conditional use permit, and under law it must be evaluated on administrative basis. This isn't legislative. City is saddled with horribly written city code. Has seen this with other cities. Highland recently had to allow development the PC turned down in order to comply with the law. Says we took oath to comply with law and the law is clear. They have never been told with how they don't comply with conditional uses. There is clear Utah case law that you don't look to policy of statute, but the words of the code. City code doesn't list permitted uses, which isn't legal. Conditional uses are strange. Whoever wrote the code didn't do a good job and now the city is facing this issue because of it. City Council already voted that congregate care is substantially similar to assisted living. Now can only determine that there are conditions to apply to remedy any concerns. They have never heard of any.

Corey Shupe - Designer for Blu Line Designs. Gave a history of process. In 2013 they made an application for congregate care. At that time, the city asked them to consider designing this property as well as the city-owned nine acres. They've heard a lot that they did a bait and switch, which is frustrating to them. They were asked what could possibly be done with the entire commercial area. One concept included a movie theater and restaurants, as well as splash pad. They designed it and laid it out, even though that property was not under their control. A petition went out day before their last presentation but feels all points were wrong and misleading. Sure resident meant well, but all items were not factual. Amsource property was approved but street is needed that is currently on Smart property. They are at their current configuration with the congregate care building in the mixed use office/retail zone. Commercial buildings proposed are in neighborhood retail. Outcry from the public has been based on false information. They asked the City Council to table the item when it first came before the Council for approval of preliminary plans. Felt that congregate care label was causing issue, so in October 2014 they made an application for assisted living, which is approved. The Planning Commission and other residents asked them to reconsider congregate care. Developer was willing to do so. Scheduled two meetings, one with PC and one with CC to reconsider congregate care. Wanted a finding of fact from the City Council that congregate care is substantially the same as assisted living. Received that finding of fact in December 2014. They provided their definition to the Council of what congregate care is. City does not have a definition for congregate care. Had they not received this finding of fact, they would have moved forward with assisted living. They proceeded forward with congregate care. Building presented overlapped into the neighborhood retail. Asked for another finding of fact that this building could overlap into neighborhood retail. Received no response from the city. In June he sent a letter asking again for a finding of fact from the City Council. Received no response. Decided to not overlap into neighborhood retail as assisted living is not allowed in that zone. Met with PC, who had issues with the layout of the green space. Agreed to meet offline with members of the PC and two member of the City Council. Had one combined meeting with group, which also included staff, then more design to come up with current configuration. There are a number of options for their commercial buildings to support their congregate care facility. Developer showed computer generated images of what the area could look like with their current proposal. Claim that it is too intense is false. Charleston has 33 units per acre. Rosegate runs between 33-34 units per acre. Code says they should be more intense than the Charleston. Won't design commercial buildings until they have tenants. He is familiar with city code. If anyone says they don't comply, it's because they are reading the wrong sections. They meet 100% of the code requirements. Hope City Council can come to the same conclusion.

Ryan Hales - With Hales Engineering. Was asked by developer to look at parking for project. Completed a study in February 2015. Knew it would be assisted living or congregate care facility. Review ITE Trip Generation Manual, which gives trip generation for various types of facilities. Project has some bleed over between senior adult living and congregate care facility. Went forward based on information received from developer on type of land use. Tried their best to determine type of land use for proposal and based recommendation on that. City hired a different company to review parking and trip generation, which came to different conclusion. Feels he knows the manuals well. Looked at similar facilities and none of them having parking issues. Senior adult housing needs 0.59 stalls per unit, congregate care needs 0.41 stalls per unit, continuing senior living needs 1.3 stalls per unit. Feels this is more between senior adult housing and congregate care and recommends 1 stall per unit.

Doug Young - Doug is the developer. Met with Horrocks Engineering who said they would support the engineering study done by Hales.

Bruce Baird - Attorney presented again. City's parking study is invalid as it doesn't address that this facility is congregate care. Put together a very brief legal analysis and gave the handout to the Council. Addresses standards for conditional uses. Says standard is simple and says conditional uses shall be allowed if conditions can be applied to mitigate issues. Says they have never been told of any detrimental effects of the proposed use. There are no standards for any of the conditional uses in the city code. By definition, parking cannot be a basis for turning it down or reclassifying it the facility.

Public Comment:
Darin Lowder - Thanked Trent for his years of service. Thanked Council for Christmas lights in roundabout. Says developer didn't do a bait and switch because we never saw switch. Said if they brought it down to 100-150 units, we would want this. We are thrilled with another assisted living and love the Smarts and their right to to something on their land. But this is nothing like the Charleston. Guess we are headed to court. We don't want to ignore our guidelines. Wished the PC wouldn't have let it get to this point. We aren't done, It's not about wanting one thing instead of another, it's about the number of units. 300 in this town doesn't pass reasonableness. There is no way the intent was to put 10% of the population on this property. Will find out at the end of the day who wins on technicalities.d

Angela Johnson - Agrees with Darin.

Marisa Wright - This is a hard decision. No matter what is decided, people are going to be mad. If you approve, approve with conditions, don't approve, people will be mad. This is a hard spot and one of the hardest decisions to make as a Council. Thanks Council for being in this seat. Knows Council has done due diligence and spoken with many attorneys. Know all want what is best for Cedar Hills.

Loyal Hulme - Attorney for Cedar Hills. Clarified two points. This meeting and decision is required by state law because applicant filed motion with state to require decision tonight. We are simply responding as quickly as we can to demand made by applicant. We intended to take a little more time, but applicant is pushing for decision tonight. Second, because of tight timeframe Horrocks had to do parking report, questions came up today. He reached out to Horrocks to get responses and provided those to the developer's legal counsel. Parking is one way assisted living and congregate care are not similar as those living in congregate care facility will be more active, as stated by the developer.

Bruce Baird - Asked when the Horrocks study was ordered. PC vote was in September. If parking was truly an issue, then one would assume staff and PC would have brought it up before PC meeting. Feels it is not due process to ambush someone with studies the night before the meeting then try to blame them for invoking state law. State law says you can't arbitrarily cut density without having some detrimental impact. Just because town wants a certain type of community doesn't mean they can deny projects. No matter what Council does tonight, will make some enemies. Asks that Council complies with the law.

Current proposal is for a 291 unit congregate care facility located on 8.5 acres of SC-1 Commercial Zone, Mixed-Use Office/Retail Sub-District. The proposed height of the congregate care facility is approximately 29 ft to the midpoint of rake of the roof, and 34 ft to the peak. The facility includes 294 parking stalls, and is 120,032 SF in size. The proposed development includes three retail/office buildings totaling 9,460 SF in size which are located in the Neighborhood Retail Sub-District.

Mayor indicated there are three choices. Can approve as is, deny, or approve with conditions.

CM Geddes - Been involved from beginning when he served on the PC. Voted for finding of fact. When this was discussed, we took Blu Line's request even though we didn't legally have to do so. Blu Line has done good job of listening and making changes. They made changes they wanted to make and only hear what they want to hear. Staff recommendations are only that, same with PC. Our code has ambiguities. He has liked some aspects of the project. In some ways it makes sense. What has been ignored is intensity and density. We did not agree to developer's definition, even though it was read. Other definitions were also read. Thanks PC and staff for work done. PC did raise some questions, traffic being one of them. It's fine for city to have reports submitted by developer to be peer reviewed by others in the industry. There are some good things about project. More tax would come to city from this facility than some commercial options. There are a lot of negatives for the city, with intensity being one of them.

CM Augustus - Whatever development occurs will outlast us all, so will have long lasting impact beyond any of us. We have to take info we have, even with ambiguous code, and try to make best we can of it for those living here. Blu Line has been great going through this process. This nothing personal.

CM Crawley - Big proponent of individual rights and private property. Feels cities have right to zone. This zone is meant for commercial and mixed use. Sees we are considering high density residential for this area. We did not say Rosegate was same as assisted living, but that congregate care is substantially the same as assisted living. Doesn't appear that this is substantially the same as assisted living. Our code is not intended for high density residential.

CM Rees - I feel it is disingenuous for developer to claim they've been ambushed as they have appeared 10 times before this Council, at the request of the developer, eight of those times being a discussion item requested by the developer to ask for feedback. Each time we have given feedback and listed concerned, which have been ignored. In the meeting where the developer asked for a finding of fact, there were several questions asked that Mr. Shupe stated he did not have answers for. While I voted against the finding of fact, I agree that the Council did not vote that Rosegate was substantially the same, but that congregate care could be considered the same. I don't believe this developer has proven that their proposed facility is substantially the same assisted living, based upon the information they have provided.

CM Zappala - Created a 12-page document outlining his concerns. Highlights from that document:

• Intent of commercial zone states "shall be characterized by a harmonious grouping of commercial stores and shops and essential ancillary uses architecturally designed and functioning as an integrated unit. 
• Size, scale, and density of the development. Code says primary objective is to make it compatible with surrounding residential developments. When Charleston was approved as part of Lexington Heights, it was approved as entire development, which is on 4.5 acres. Density was given to Charleston in return for no density in office spaces. 65 units were approved over 4.5 acres and this was the proposal approved, which is 14.4 units per acre. This facility is nearly twice the density per acre. If we make it similar density over 11.4 acres is 165 units. This makes it similar to density given to Charleston.
• Intensity of development. Code says this subzone shall be less intense than neighborhood retail and we can restrict use to get this lower intensity. Looked at traffic study provided by Rosegate, which estimates 1002 daily trips for their facility. Two commercial buildings they propose show 710 and 820 daily trips. Clearly their own studies show their facility is more intense than the commercial they propose for neighborhood retail zone. Lexington Heights has an intensity of 186, Charleston has 178, this proposal is 1002. Code requires it to be less intense. Would argue the intensity should be between what is occurring in office zone and neighborhood retail zone. 
• Burden of proof is on applicant to show that use is substantially similar to assisted living. He contacted Treoo, a congregate care facility in Orem, and found out they provide meals twice a day, which is included in rent; they have a physical therapist onsite; they have a home health care agency onsite five days a week to help with medication and other medical needs. Would expect a certain level of services for a facility of this nature. Council gave clear feedback in December 2014 that what was presented was more like residential than assisted living. 
• Parking study performed substantiates that this facility is short parking stalls as 1.3 to 1.4 stalls is needed for this type of facility. Clearly, the residents living in this facility will be active. There is not regular public transportation in our city and residents in this facility will need to rely on vehicles.
• Landscaping and open space standards have not been met. Code states landscape shall create park-like atmosphere and should be open to pedestrians. This is not the case with this proposal.
• The phasing of this development is concerning. Developer himself has said he will not build commercial until he has tenants, and in previous meetings has publicly stated that even if he gave retailers a million dollars they wouldn't come here. No assurance that developer will ever build the commercial buildings.
• Public safety impacts will be great. Currently, 5% of EMS calls for city go to the Charleston. This facility will increase demand on those services.
• Concerned that 55+ will not be met in all unit, and would like to require that 100% of units have at least one resident living there who is at least 55.
• Lighting and privacy for homes to the south is a concern. Would like conditions placed that will mitigate these issues.

Zappala feels we could either deny or require certain conditions to mitigate the impacts addressed. Went through his proposed conditions:

1. Residential aspect not constitute more than 50% of the development.
2. Building should be broken up into two or three separate buildings.
3. Commercial should generate significant onsite sales for buildings adjacent to Cedar Hills Drive.
4. No more than 100 residential units.
5. Must include on-site services for residents or the living aspects should be ancillary to commercial uses. 
6. Include 1.4 parking stalls per resident unit.
7. No overnight parking of recreational vehicles.
8. Landscaping and open areas shall create park-like atmosphere with linked pedestrian corridors to promote pedestrian activity. 
9. Entire development be constructed in phases that include both commercial and residential development.
10. Rosegate facility be reduced in scale, size and intensity to mitigate impact on public safety.
11. Each unit shall be occupied by at least one resident that is 55+.
12. Lights in parking areas will be mounted low to the ground on bollards, rather than light poles.
13. Landscaping border on southern edge shall be 25' instead of 15' and trees on southern border shall be evergreen.
14. All approvals of conditions must be made by PC and City Council.
15. Conditions must be included in CC&R's recorded with property.

Crawley asked if there would be a central dining area for residents. Mr. Shupe said yes. Again read his definition given in December 2014. Mr. Baird says any ambiguity should be read in favor of the property owner. Ryan said there is a cafe that is for residents only, but is not imposed on residents. It is optional for residents. Cafe is operated by third party company. Crawley said assisted living provides three meals each day as part of monthly fee. Second question Crawley had was if medical services are onsite and available at all times. Mr. Baird said they will be substantially similar to assisted living but will be provided as needed a la carte by outsourced organization. Crawley asked if there are places for gatherings. Mr. Baird said yes, there is a room. 

Geddes said he's done some research on assisted living. He has a brother who owns several. If everything is a la carte, is Rosegate licensed by the state. Third party providers are licensed by the state. State of Utah requires assisted living to be licensed by the state. Mr. Baird said this doesn't change use of building. 

From my perspective, it doesn't make a lot of sense to give the same level of density to Rosegate as the Charleston as, by the developers own admission, these two facilities are nothing alike. Developer has said that these residents will be engaged in the community, whereas assisted living residents are bedridden. Therefore, it is safe to assume intensity of these residents will be greater than the Charleston simply by the type of resident. I also feel we should be specific as to what the Council means by onsite. Sandy City gives specific examples as to what services are offered to residents by the management of the facility and what support services are outsourced to outside agencies. Simply stating you can have cleaning, medical, recreational, etc. services available if requested does not make this substantially the same as assisted living. Any person can order these services for their home and it does not qualify their home for a congregate care definition. However, based on parking studies, traffic studies, and density already granted in the area, I think it makes sense to approve with conditions to mitigate concerns, with density of 165 granted and the other conditions outlined by CM Zappala.

Zappala says if we look at intensity of traffic, it makes sense to allow 103 units. If we look at density granted to Charleston, it makes sense to allow 165. Traffic study for 165 units would put impact at same as impact of Dollar Tree, which is in the neighborhood retail. 

CM Crawley feels like Zappala's conditions resolve many concerns raised. Augustus agrees. Augustus said no matter what we do, someone is going to be upset. Asks for everyone to be nice, we are doing the best we can. 

CM Zappala made motion to approve with conditions. Read through the conditions provided in his letter (and I will ask him to post the entire letter to his blog so everyone can read it). Conditions include items listed above in 1-15 but with density of 165 units, not allowing anyone younger than 25 to live in the facility, and requiring the owner of the building to return the property to its current state if conditions cannot be met in the future so we don't have a large empty building on the lot. This was approved 5-0.

Developer has stated they will appeal to Board of Adjustment.

Review/Action on a Moratorium to Address Possible Changes to SC-1 Zone
This action places a hold on any new applications for development for the next six months in order to finish reviewing possible changes to the Design Guidelines and General Plan, as was started over a year ago. From the resolution:

WHEREAS, pursuant to Utah Code §10-9a-504(1) and §10-9a-509(1)(a)(ii), the City Council of the City of Cedar Hills (the “City Council” and “City” respectively) has determined it is in the best interests of the city to undertake amendment of Cedar Hills Municipal Code (“CHMC”) §10-4E-1 et. seq. pertaining to the SC-1 Shopping Center Zone (“SC-1 Zone” or “SC-1 Zone Ordinance”), the Town of Cedar Hills General Plan (“General Plan”), Guidelines for the Design and Review of Planned Commercial Development, including, but not limited to, sections related to the Neighborhood Retail, Mixed-Use Office/Retail, and Mixed-Use Office sub-districts (collectively, the “Design Guidelines”), and/or any related ordinances that pertain to development in the SC-1 Zone.    WHEREAS, the City has limited property available for development in the SC-1 Zone and the City desires to reassess commercial development in the SC-1 Zone in accordance with the development goals and objectives as set forth in the General Plan.   WHEREAS, the City desires to amend the SC-1 Zone Ordinance, General Plan, Design Guidelines and/or other related ordinances in order to accomplish the goals of the SC-1 Zone such as allowing the community to better balance the tax base, providing residents with employment opportunities, retail goods, and office space, and fostering safe and adequate access for public enjoyment of planned commercial development projects in the City.  WHEREAS, the City finds there is a compelling, countervailing public interest in enacting a temporary land use regulation with respect to the SC-1 Zone and that amending the SC-1 Zone Ordinance, General Plan, and Design Guidelines is in the best interest of the public health, safety, and welfare.   WHEREAS, the City desires to provide notice to the public that it intends amend the SC1 Zone Ordinance, other related ordinances, the General Plan, and/or the Design Guidelines.

This was approved.

Review/Action on the Release of Durability for the Woodis Subdivision
A final walkthrough of the Woodis Subdivision has been conducted. City staff conducted an inspection and at this time all improvements have been installed per development regulations and agreements. Amount is around $6000. This was approved.