Certificate of Posting

Present: Chair Laura Justice, Boardmembers - James Blackmore, Pat Andregg, Deon Lamb; Staff: Troylinn Benson, June Jeffery, Kevin Bennett, Lloyd Watkins, Derek Imlay, Public: Evan Nelson, Ray Justice, Richard Bratchner and Joan Tucker - Gateway Managers, Anna Andregg

Meeting Called to Order: Chair Laura Justice at 6:00 p.m. Opening Prayer and Pledge – Jim Blackmore

Election of New Chairman & Chair Pro Tem: Andregg nominated the present chair – Laura Justice and chair pro tem – Jim Blackmore, second by Lamb. Carried 4-0.

Motion on Minutes: Motion by Blackmore to accept minutes of the March 27, 2008 special meeting, second by Andregg. Motion carried 4-0.

Administrative Appeal:
Tom Wood requested an administrative appeal for a decision made by the LaVerkin City Council at the November 19, 2008 regular meeting to deny a request for extension of closure for Gateway RV Park.

Chair Justice asked if there were any questions from the board members before the meeting began. Deon wondered how this item concerned the Board of Adjustment. She clarified that as a board of appeals, an applicant may appeal a city council decision.

Justice wondered about the time frame of the agreement in question. In reading the material, the development agreement between the council and Mr. Wood gave Mr. Wood 10 months in order to meet the new law of 9 month notice to the trailer park residents. She wondered if new RVs were allowed to come into the park during that time.

Attorney Bennett stated that was not addressed. Anyone who was not an occupant at the time the notice was given was expected to vacate at the same date. At the end of the notification period, there was to be no one there. The city didn’t intend for new occupants, but Mr. Wood needed the time to vacate. The city wanted to make sure that no one was hurt and that the new laws in place were followed. Ten months were given to make sure that all occupants would have the ability to get the notice as provided for.

Justice wondered that the development agreement said that at the end of the 10-month time frame the parcel Wood retained after selling to Maverick was to come into compliance. Compliance as what?

Bennett explained that it would comply with effective zoning laws. Neither RV parks or Mobile Home Parks are currently permitted uses. One of the questions with this development was the ability to piecemeal conformity. Here was a proposal to split the property and “phase” the compliance - with an immediate conformity for the split portion and a delay for the retained portion of the property. The city agreed that with immediate correction of health and safety issues, inspections similar to those done in other RV/mobile home parks in the city - Silver Springs and Shady Ridge - would not continue. Wood knew from the start of the inspection process that this was coming. Rather than leave all of the property out of compliance, the city allowed the split so that Wood would have money to finance development. The Development Agreement allowed the lot split and 10 months to bring the rest of the property into compliance. The 10 months allowed the tenants time to relocate. The trailers were to clear the front and move to the back.

Board member Blackmore wondered who represented Mr. Wood as he was not in attendance. Evan Nelson had been named to represent the park residents.

Justice asked about the effective date on the agreement. It states that the agreement shall remain in full force for a year from the date of signature. This date didn’t affect the time frame for the park, but for the agreement itself. The whole agreement would become ineffective after a year. There was brief discussion that at the time of the agreement the 10-month allowance fit the request, now with an extension request it went against the provision of the agreement and would require an amendment to the agreement as well.

Mr. Nelson stated that he was not representing Wood, but had met him last week. He has been working with managers Joan and Richard for several of the residents as the (LDS) Bishop for that area and Wood asked if he would attend this meeting. Nelson has read everything that Wood gave him. In the council meeting, Councilmember Jensen felt that the improvements outweighed the monetary benefits. Nelson believed that everyone in attendance felt a concern for the Gateway residents and that everyone had a responsibility to their jobs or callings. He met with the managers today and reviewed the status of every occupant in the park. (Joan and Richard were introduced to the board).

In August there were 36 families, now there are 18. Two of those would be gone this week. Nelson had concern about the Jerry Nielson family. They were trying to move to Oregon, but had legal obligations that made them stay here. That matter would be taken care of on Thursday. There was an older gentleman who had no place to go. Many of the others have left to go back to Mexico or other locations. Nelson had told Mr. Wood that the city had obligations to fulfill. He told Wood that an exit plan was needed. Nelson then handed out a list showing the trailers that have been moved and those that were still there. He believed that a 90-day extension would be necessary to allow time to move. Wood wanted six months, but Nelson believed it could be done faster. Even 60 days would be helpful. If everyone knew that in actuality that was the end date, they would leave. Many of the trailers had been contracted to be moved to reservations in Arizona. 16 were owner occupied, 9 belonged to the Gateway. Three of those were currently occupied.

There was discussion that the vacant trailers created police concerns. Mr. Wood is responsible to move them out. He was in Arizona working on financing for the LaQuinta. The deadline was January 19th. The trailers would not be gone before then. As Bishop, Nelson learned that there was a rumor that the residents would be allowed another six months. It gave them false hope and that didn’t push them to move. He would like to see a new “bottom line” – this is it.

Board member Andregg stated that the residents should have known that when they received notice ten months ago. Nelson agreed. He has helped those who are members of his church, but he has not had any contact with those that remained before now. He was working to relocate them. There was further discussion about the vacant trailers left on the lot.

Joan thanked Nelson for speaking on the behalf of the residents. They supported all that was said. They appreciated the compassion extended to the people who have absolutely no place to go. They have worked as hard as they could to find places but the options were limited. The trailers were hard to get rid of because of their age, but they will be gone. They are being given away to get them out. There was a great financial hardship and concern about vandalism on the vacant trailers. Being able to keep a few people on the premises would help protect the trailers until they could move. The economy was a big problem.

Justice stated that she had friends and friends with relatives living there. She had heard phrases like “all of a sudden”, “they didn’t know”, “don’t have to be out until February or March”. She would like to know if the notices went out to the residents within the time frame required. Joan stated that the notice was given and the city had copies. The mentality here is that these people bought these “homes” expecting to live in them forever and there is no value in them now.

Justice said that in the development agreement, which Wood signed, he agreed to the conditions without right of appeal. She was not unsympathetic to the plight and understood the situation, economic conditions made it worse.

Andregg commented that there were burglars and similar living there. That would not change until all the trailers were gone. Richard replied that there was a concern with vandalism. Andregg felt that those problems were the management’s concern. The city was happy to help Wood move ahead. He needed to get it done. The concerns now were neither the city’s nor the board’s problems.

Blackmore stated that he was going to comment against the grain. There was only about a week before the time was up. In the meantime, those trailers would not be moved - it couldn’t happen in that length of time. Even with the humanitarian issues removed, the trailers couldn’t meet that time frame. He believed they are trying to move along and that couldn’t be done easily with the economy. There were those that were unemployed, or on social security and had no excess income. This was the oldest business in town; it had been in place for over 30 years. It was run down and neglected and needed to move. It was a hardship to the people who were there. He didn’t see any way the trailers could be moved short of the city burning them down and didn’t know if the city had an alternative solution. Conditions change, banks close their doors, the contract was in place, but contracts could be adjusted. The city needed to press forward with the health and safety issues to clean this up, but he would like to give them 2-3 months to move the vacating into the spring when it’s warm. They have had a lot of time, and they need to work on the general appearance and move things along. He would like to look broadly at the pros and cons – people’s needs, physical relocation, time, protect their vested interests- pressing to move them out. He stated that six months is too much time, but would like to extend 2-3 months.

Board member Lamb supported that two-months extension should allow them to be completely out.

Justice pointed out that there were legal issues in the matter and the board could not act outside of the law. In the agreement Mr. Wood actually waived all rights to an appeal.

Bennett stated that he felt as bad personally as anybody, but the item before this body is an appeal. The board of adjustment could act on either appeals or variances. This item didn’t meet the requirements for a variance and an appeal must show that there was something illegal or in error about a decision that was made. The appeal was applied to a land use decision only. Where was the decision here? There wasn’t a decision before this board. A decision was something imposed by one body, upon someone else. This was not an “arm’s length transaction” where you work out something. This was not a condition that was imposed by the city, but a mutual agreement made by two parties – approved by the city council and Mr. Wood. It could only be amended by written mutual agreement by both parties. It could not be amended by going from one body to another until one was found that agreed with him. The conditional use allowance was given up by Mr. Wood at the time of the agreement. This was a desire to give more time on a contract issue. There were some land use concerns involved, also nuisance, and health and safety issues. The agreement came about so that Mr. Wood didn’t have to worry about the city doing inspections on his RV Park. There was a March 1st inspection to see what the immediate concerns would be. He got the benefit of the bargain. Mr. Wood had no hardship. There were no inspections, he got to divide the property and collect rent while the time to vacate proceeded. He was given notice of the inspection process a year before the notice was required to go to his tenants. He had the burden of proof to show that the city applied the law erroneously or illegally. Kevin agreed that the occupants deserved compassion and humanity, but the board had a statutory duty. As attorney in an appeal, he represented the city’s interest, not the board’s. This was not a board of favors, there was a legal duty. Heart was not the issue. The extension was not the issue, the issue was jurisdiction or that a land use decision was made inappropriately. At City Council meeting they reviewed the contract – a mutual agreement where they had the right to say no. The terms of the agreement state “not more than ten months”, will happen on or before and in no case will an extension be granted. It was possible to modify a contract if both parties agreed. There were two months tacked on the end of the contract end to give Mr. Wood every opportunity to get it done. Now suddenly there was a flurry of activity. On the 19th, the agreement was over. At that point, the city had the right to enforce the provisions of the agreement. It would be up to the body with authority at that time to enforce the agreement. In November Mr. Wood stated that there were only RVs left on the premises. There were mobile homes there at the time of this meeting. The opportunity of the board as a quasi judicial body was to set aside the feelings that they may have, and still obey and enforce the laws. Heart is good, the statute tells you what you can do and what you can’t.

Justice supported that the appeal was one of a legal nature, out of compliance of the law. She stated that everyone had sympathy with the concern. The agreement was legal and binding and didn’t allow for an extension. It waived the right for appeal. Even the memorandum and application from Mr. Wood stated that there was nothing illegal about the decision being appealed. He cited that personal opinion of staff members and not law had been the basis for the decision.

She still had a question about the date. Ten months from the signature on the contract would be the 26th of January, not the 19th as the contract was signed on March 26, 2008. Bennett clarified that the contract was set as of the date of council approval, which was the 19th of March. There had been concerns that if the signature was put off, the project would be tied to that time frame.

Blackmore questioned what would happen at the year time frame if the action was not complete. There was discussion that the agreement would be off. Concern that the city had already granted in favor of Mr. Wood – he had all the benefit. Discussion that the park could be red tagged and there could be review and penalty to comply with current zoning. Further statement was made that Mr. Wood knew months and months ago. There was no erroneous action, only hardship that doesn’t fit the requirements for variance. Other discussion about possible legal entanglement if the contract was not complete.

Joan stated that Wood didn’t want to stay open. He wanted to get the job done. The health and safety issues brought up with the original inspection were taken care of. Justice restated the job of the board was to review for illegality or error.

Discussion about the statement for vote. It could either grant or deny the appeal, not the decision, or it could determine if this body had jurisdiction. If the appeal is granted, the illegality needs to be stated specifically as substantial evidence.

Statement for vote: Chair Justice: Based on the fact that the city was correct in its decision, based on the fact that in the agreement Wood signed and waived all his rights to appeal, and that the contract gave him ten months until January 19, 2009 - the board should uphold the development agreement and contract and the deadline as set forth.
 
Vote:     

    Pat Andregg: Yes, uphold the contract and the deadline
    Jim Blackmore: No
    Deon Lamb: Yes, uphold the contract and the deadline
    Laura Justice: Yes, uphold the contract and the deadline

Vote carries 3-1 to deny the appeal.    

Adjourn: Motion by Pat Andregg to adjourn, second by Deon Lamb. Motion carried 4-0 7:04 p.m.


Minutes taken by June Jeffery.

Laura Justice, Chairman

 

 Date of Approval, October 13, 2009