Moratorium For Midway? Part Two of Two

The Public Speaks But Are They Heard?

by Robin M Johnson

Public support for a proposed six month moratorium on residential development in Midway City was unanimous at a public hearing held late into the night last Wednesday, May 17. Everyone agreed taking a step back was necessary and wise. However, there was disagreement over the timing of the moratorium as well as the scope and focus of the moratorium. Over forty citizens patiently sat through discussion, public hearings, and motions on other matters waiting to hear and participate in the night's last agenda item.

As the clock approached 10:00 pm James Kohler, planning commission co-chairman, opened the public hearing regarding the moratorium. During the public hearing some citizens asked questions of city staff, some questions were immediately answered, others were not. 

Robyn Stone was the first resident to speak. Stone said,“I am so appreciative that there’s been some attention given ... to the staff for this busy city in being swamped with many ideas and also accepting requests ... Opportunities come, developments come. And they’ll be able to happen. Everybody gets a chance at one point or another but I appreciate the opportunity to come tonight and speak about the moratorium."

Speaking about a land use request discussed earlier in the evening Stone said, "You really gave the developer today all your heart. Every possible opportunity. And he may be successful in developing the ground. We’ve got benefits all over this sweet valley of improvements, and opportunities to enjoy, everything that we didn’t used to have. 

Asking for the commissioners to listen to the public Stone said, "If you would please, consider with that same valor, the citizen. The person who lives here. The reason we all come. And have the courage to also say we respect your safety ... working together, and being able to interact and listen to these ideas and find the best way then that’s what Midway’s about, to care about one another. Thank you for your service."

Nora Lundin's main concern was the timing of the moratorium. "I am not against the moratorium," Lundin said. "I understand that it takes time to get these new laws and everything in place, but I would suggest that maybe a postponement of the moratorium for people that are kind of at the very edge ... perhaps mid-July or mid-August." Lundin said she and her brother are trying to annex a small part of their acreage into Midway for a six lot subdivision.  They will sell four lots to pay for homes for she and her brother.

"We’ve had lots of setbacks. And I never thought in a million years it would take us this long to get to the point we are, but we still haven’t been able to put our application for the subdivision in. And I just read about this just last week, that there was this proposed moratorium," Lundin said. Just to have "a little bit more time ... to get those applications that are just barely getting started to get it in and get done. That would be my only suggestion. Thanks."

Mickey Oksner said, “I’d like to ask what the exception was for the rural preservation zones. I would ask that we liberalize that a little bit and if somebody comes in with a two or three acre rural offer, ... or somebody coming up with a three or five acre horse property in this period, that that would be considered. So take your R-1-22 or 43 zones and liberalize these a little bit as opposed to just the rural preservation. Thank you."

Katie Noble said, “I think the elephant in the room is the C-4 zone. I wasn’t sure how this was going to impact C-4. It seems to me we need some time to really get C-4 absolutely right. So that would be the only reason not to allow development ... in C-2 and C-3. I guess that’s a question, more than a comment. I’d like to see the moratorium, because of C-4, apply to C-2, C-3, and C-4. Thank you."

Paul Berg said, “Just a few observations I’ve had about moratoriums. This will be the third one I’ve been involved with in Midway. The first one Mayor Probst had was specifically about PUD’s. Mayor Tatton, I think one of her first items right after she was sworn in was she enacted a moratorium."

As an engineer, Berg is often hired to represent developers for their land use requests in city meetings. Berg said, "First of all, I’ve found, just so nobody thinks this is self serving, it doesn’t hurt my business, it doesn’t hurt me financially."

According to Berg's observations city staff really doesn't get a break during a moratorium because they still review applications already in progress, they review building permits, and they take on all work relating to the moratorium. "By the time they are done they are kind of burned out and then they see this long line of applications ready to come in ."

Berg said, "When Mayor Tatton’s moratorium ended I think I was representing eight developments at every planning commission meeting for several months after. So there is a big load while you are doing this and there’s a big load after."

Another observation Berg made from his experience with other cities as well is that "some of the cities that have gone through it a little more successfully have actually hired an outside consultant to help the planning staff during the moratorium. It might be something you need to consider" to avoid staff burn out. 

Further Berg said the good that comes from a moratorium are staff gets a break or a breather and the city hopefully makes better laws to guide the development with the general plan. He said the other side of the moratorium, however, has definite unintended consequences regarding inventory in the housing market and rapidly escalating house prices. "During that six months the inventory just kind of, new inventory disappears, current inventory is bought up, and then there’s this period where we just see prices really spike."

According to Berg by 2006 the Dutch Fields development went through two phases in roughly four years. However the year right after the moratorium ended Dutch Fields went through three phases in one year. Berg said, "They were the only game in town. Not that that’s a bad thing for the people who are already in; but what I then found was that everybody on the outside looked at how fast prices were escalating in Midway and it attracted everybody and their dog to come here to develop. If we have a similar thing happen you may find its worse than before, then the prices skyrocket."

Kohler asked, “Do you think the spike in prices that you referred to in 2006 was a result of the moratorium, or just the general market conditions?”

Berg agreed the general market was up. He said, "suffocating the new inventory let all of these master plan developments that were already in the game that didn’t have to wait ... charge what they want, prices went up. The bigger point is that everybody on the outside saw those escalating prices and just said, Man, Midway’s hot, Midway’s the place to be. It attracted a lot of ... potential developers that I don’t think you’d normally see in Midway ... they were the money guys, they were guys with development experience and house building experience. I haven’t seen those guys back here since then, until recently they are starting to poke around, but I wonder, will this have the same effect?" 

Holly Bodily said, “Is it possible to limit the number of agenda items that are on the agenda for you each month? And I’m sorry if this sounds rude, but if a developer has to wait a few months to get his time in because there are only so many of you, and only one Mike Henke, maybe those developers have to wait just a little bit. I don’t say that in a rude way, I just say that in a realistic way. If we make it a little bit harder, then I don’t think that’s really a bad thing. But I also do agree with the moratorium in the meantime."

Ryan Barney said, “I’ve observed kind of what’s going on and enjoy the fact that you are being proactive, looking toward the future. The time to put up the fence is not after the dog ran away, the time to put up the crossing gate is not after several accidents have happened at the train crossing, and it’s not the time to put the stop sign up after you’ve had accidents there. I look on the wall here, there’s been those in the past that have kicked the can down the road ... I commend you for stepping forward, and also for realizing that it’s not time to kick the can down the road; it’s time for action. Thank you."

Heather Rasband said, “Maybe rather than a complete moratorium for plans for development, could you implement something where it just goes down, put a limit, is it legal to do that?  Say you only will accept so many per year, or so many within a month? Do you have to either freeze it or allow everybody to apply?"

Jewkes said, “It likely would be, the statute is not that specific, it simply discusses temporary land use regulations; we’d have to look at that as a potential solution."

        

Rasband said, “In that regard could you still allow new homes to be coming up but just slowly, instead of really, really fast? I like the idea of what you are trying to do, whether it ends up being a moratorium or just slowing the flow a little bit, by being proactive rather than reactive. 

"I think, too, … that the commercial zones should be included even in your slowing down process or the moratorium, until you have decided what you are going to do with your C-4, to solidify that, because if you are going to enact a new zone you should probably get that all set before you keep allowing things to happen in those zones that you are trying to rezone." Finally Rasband wondered if public parks was the best use for open space. 

Derek Sevensen said, "The public is showing great interest right now, I think that’s a great thing. And to be able to harness their interest, I think, would be awesome as far as the process, and it would validate the public’s presence and feelings as far as being members of the community. Also ...  there’s some really great ideas that just come out of the wood work … so I think that’s one huge benefit that can’t be overlooked. If you can take the time to get that feedback I think it would be critical. Thanks."

Inez Wilde said, “I don’t think a lot of the people realize how many subdivisions are going in right now. I know of at least seven, and I really think the moratorium is a good idea, to take time, to step back, make sure that there will be enough services for everybody, that the city of Midway can expand the way that it should. Also, the idea that one end should have all the development and the other should have all the open space is a little frustrating to me, but I won’t say anymore about that, for now."

Ellen Collette said, “I think that it would be wise to just go ahead and have a full out moratorium. Not because I don’t like development, I think that trying to make a soft moratorium is not going to work. I think it’s too hard, I think it puts you in a spot where you don’t have a solid definition of what’s allowed and what’s not. It’s just going to take a lot more time to do what you could do in six months if it is done right. I am not against development, I am pro smart development  and having Midway be a place where I can live."

Jerry Miller said, “I am kind of a simple mind so I might have missed something, but I have a question more along the lines of this young lady here (referring to Noble's earlier comments) who says 'How come we’re not including the C-2 and C-3 zones? This C-4 thing is part of a residential thing, what we’re talking about is residential, so I’m confused why we are not including that. Did I miss something, or … I feel like her question got kind of blown over. I have the same question."

Henke said, “Yeah, definitely this is discussion so it could be included in the moratorium, that’s definitely a possibility. I think we’d need to define what development in the C-2, if a restaurant is proposed on a property do we want to stop that, for instance? Or just a retail store. We could say mixed use is part of the moratorium, that’s certainly a possibility, but I wouldn’t want to stop just commercial; I don’t think any of the code texts we are talking about (amending) effects just the pure commercial development."

Miller asked if mixed use included the whole C-2 and C-3 zones. 

Henke said, “You can have development in the C-2, C-3 that’s not mixed use. Mixed use is when you have a residential component as part of the development. So the planning commission and city council would need to decide if they want to include all commercial development, or just mixed use commercial development as part of the moratorium.”

Miller said, “And that is my question, because this involves the C-4, which is a mixed use, so why are we not including that. Because if we are trying to slow down residential growth out here, what about right here in the heart of the town?”

Kohler said, “C-4 isn’t even enacted yet, it’s just something that’s being considered.”

Miller said, “Right, but including the C-2 and C-3 in would slow down a little bit that process, and maybe rethink it.”

Randy Lundin said, “I’ll tell you this story first, many years ago ... in 1976 we built the mobile home park on Homestead Dr. The biggest problem that everybody criped about was too much impact on Homestead Dr. That’s in 1976. This is the same … I think you kind of need to step back a little bit and not get so fired up on this. I know you gotta have changes, but it’s the same story that it was in ’76. You know, over and over. Look what’s happened up there. Nobody changes how many people move in here. With all the moratoriums you want to put in, it doesn’t slow down the growth. The other thing, my question to you is, I kind of wonder why you can’t do this on an ongoing basis. Like, why do you have to put a moratorium in to change a rule? Why can’t that be done in your normal day? All of a sudden you have a shut down, why isn’t that an ongoing thing you address?”

Kohler said, “Resources. Thank you. Appreciate the question. I don’t have an answer to it.”

Earlier in the meeting, before the public hearing, Natalie Streator, planning commissioner, said that a moratorium this time of year would not impact a developer as much as it would in October because there is a process a developer goes through to get ready to build in the springtime that he doesn't go through in the winter. 

Lundin said, “ I just think the timing, the time of year, Natalie said the timing is good. I don’t think it is. With the moratorium, even though it will shut down certain projects, there is a certain amount of work that’s being done before construction, that don’t happen in the winter. I think a better time would be to do a moratorium in the winter. There’s a survey and all kinds of things you have to do to get even to that point."

There was no more citizen input following Lundin's comment so Kohler closed the public hearing. At this point the planning commission chairman generally asks if there is any discussion from city staff or the planning commission regarding the public comments. Instead, immediately as the public hearing closed Waldrip began speaking. 

“Mr. chairman, I have a motion if that’s appropriate,” Waldrip said.

Kohler said, "Indeed it is."

"I move that we recommend to the city council that they adopt a resolution for a six month moratorium as requested by the staff on all subdivision applications and we accept the staff report. We find that the city recently adopted a revised general plan with many proposed changes that have not been enacted into code yet, most of which have to do with the residential aspects of the zoning structure of the city. We find that a moratorium would allow the staff more time to pursue the preparation of potential code text amendments for the planning commission to review and recommend on to the city council that pertain to the changes in the general plan and the review of the impact fees that relate to the development in the city, that submittal of building permits would not be effected by the moratorium, nor would applications that have already been made before the moratorium was enacted. And if there is a second to that motion, I will speak to it,” Waldrip said. 

A second was made and Waldrip spoke to his motion. 

He said, “There have been a lot of suggestions as to what we ought to do with the moratorium but I think the most compelling thing is what Michael has asked for. He’s asked for a moratorium on the submission of subdivision applications and since ... he best knows what he needs in terms of being able to step back a little bit to continue with the work that is necessary, but to postpone with the work that would be necessary with future subdivision applications, and I think we ought to honor his request and not try to mess with it.”

Ream said, “Can I ask one question, though, before we go there? Because someone brought up hiring like contractors, is that, I mean, what are you really asking for? Would that help?”

Henke said, “Well, I do know a bit about our budget, and so I don’t think that’s something written in the budget for right now. I think we can, I’ve got a fairly good grasp of what happened here on our general plan and how we need to move forward on those code text amendments. I think we can handle it with our current staff. But, that could be recommended to the city council, but I think we can handle it ourselves.”

Kohler said, “Any further discussion on the motion?”

Streator said, “Clarification. Subdivision, this is applying only to subdivision applications in the R zones, it does not apply to any of the C zones, and it does not apply to an annexation application?”

Henke said, “That’s correct.”

Payne said, “I just have one comment, or suggestion. To include only within the C-2 and C-3 zones projects that are mixed use that are one acre or greater, which would address the issue that we’ve been discussing … today of addressing any increased density that could happen within the C-2 and C-3 zone until that (the C-4) is taken care of and enacted.”

The next events happened in rather rapid succession. 

Waldrip said, “Well, that’s not part of my motion.”

Kohler said, “Would you like to amend it?”

Waldrip said emphatically, “No!” followed by a few chuckles. 

"Any further comment or discussion?" Kohler asked. "I'll go for the question on the motion, all in favor?"

All but one commissioner said, "Aye" in unison while Payne looked back and forth at his fellow commissioners. His aye trailed behind the others by a couple of seconds. 

Several questions raised by the public were left unanswered, most obvious of all was the one Payne tried to bring forth at the last minute but found no support among his colleagues. That question alone was touched on by at least three citizens in the public meeting, and one which Henke expressed support of at least twice in the meeting. 

Note: The recommendation to enact a moratorium will most likely be on the city council agenda on June 14.

For a full transcript of the moratorium agenda item send a request to rmjgoldenjade@yahoo.com 

    

Moratorium For Midway? Part One of Two

Update Residential Land Use Code Consistent with General Plan 

by Robin M Johnson

Momentum in subdivision and Planned Unit Development (PUD) applications is rapidly building in Midway City. At the planning commission's regular meeting held Wednesday, May 17 the last discussion item on the agenda was a request from city staff for a six month moratorium on subdivision and PUD applications to give the staff time to update the city code following last year's general plan update. A public hearing was scheduled within the discussion and approximately forty citizens waited through about three hours worth of other agenda discussion items. 

James Kohler, planning commission co-chairman, opened the moratorium agenda item stating the purpose of  "enacting a six month moratorium for new subdivision applications ... is based on the need to update the land use code based on changes that were enacted to the recently adopted Midway City general plan" last year.

Michael Henke, city planner, presented the city staff's request for the moratorium.  Henke said, “There are nine chapters in our general plan and there were a number of revisions made … once they are made, the idea is you carry those ideas into the code. That requires us to do a formal code text amendment."

The planning commission has already started looking at some of the needed changes. Two agenda items preceding the moratorium discussion were reducing the density in the C-2 and C-3 mixed use zones from 20 residential units per acre down to perhaps one or a few, and possibly removing duplexes from the R-1-9 zone. 

Henke said formal code text amendments require "effort to go through and write up a staff report, do the analysis, and bring it to the planning commission and city council. As everybody knows Midway is a great place and a lot of people want to move to Midway"

Three reasons were given that led the city staff to propose the moratorium, according to Henke. The first is due to a large number of subdivision and PUD application requests. Any new applications that come in before the code revisions are made are not subject to the new ideas in the general plan. "If we don’t get those code text amendments approved then the subdivisions are being applied for right now will not do the changes that we are trying to make with the code," Henke said.

A second reason for a moratorium involves the time those applications take for city staff to process. Henke said stopping new applications for six months "would give us time to go through the code text amendment process for the different items; have a discussion, a public hearing on each one of those items and see what makes sense for the community based off what’s been written into the general plan."

The third reason for the moratorium to go ahead is that it will not effect applications for building permits.  Henke said it is a common public misconception that building permits would not be issued during a moratorium, “Building permits would not be effected by this. If somebody has a lot that is approved and buildable then they would be able to apply for a building permit."

Henke outlined the perimeters of the staff requested moratorium. First the city will not accept applications for subdivisions and PUD's in the R (residential) zones, from the smallest R-1-7 to the largest RA-1-43 zones. However, residential applications that meet the new Rural Preservation Subdivision ordinance will be accepted because it already meets much of the needed code text amendment changes included in the general plan regarding the preservation of open space. 

Henke said applications for developments in the C-2 and C-3 zones would still be accepted during the moratorium. Any residential applications already accepted by the city before the moratorium begins will continue to move through the process because, according to state code, once a city approves a development application the project has a vested right to move forward under the ordinances in city code on the date the application was accepted. Therefore, preliminary and final approval items of projects with vested rights will still appear on city agendas.

Henke listed some code text amendments that need revision to meet the intent of the general plan: 

1. Review the animal rights code. "It’s a really restrictive animal rights code so it’s been proposed that we take a look at that and see if that could be loosened up  in a few areas," Henke said.

2. Review the density for planned unit developments in the RA-1-43 zone.  

3. Potentially eliminate proportion size lot and frontage requirements when open space is required. "When we have open space required the lots can be reduced proportionally. It’s been debated by city council if the lots should still meet the zoning code for whatever zone they are in and still require the open space," said Henke.  

4.  Increase setbacks along collector roads. "The idea is to preserve rural atmosphere of Midway by not having any structures to close to any of our collector roads," Henke said.

5. Review open space requirements for subdivisions.

6.Amend the Trail Committee to become the Parks and Trails Committee. "We have that discussion before the city council and staff has been given direction on going through and amending title two to modify that committee to include the parks committee," Henke said.   

7. Create an Economic Development Committee. "This was part of the economic development chapter in the general plan to create an advisory committee for economic development," Henke said.

8. Review allowing duplexes in the R-1-9 zone.

10. Reduce density for mixed use projects in the C-2 and C-3 zones.

11. Amend the outside water requirements for all subdivisions."The city currently has a pending code amendment regarding that item and so we’ve started a review process for those requirements on the outside irrigation," said Henke.  

12. Review the noticing requirements. 

Henke summed up saying these are just examples of important items to focus on and have a healthy public debate about from the general plan.  

Henke later said he overlooked one item that should be added to the list, updating the capitol facilities plan based on the general plan. He said it has a significant effect on the impact fees that are paid when a building permit is finished. "Right now we are probably not collecting the correct amount of impact fees because of what’s been added to the general plan  so that’s something that’s very important for us to review."

Planning commissioners had many questions for the city staff. Kevin Payne, planning commissioner, asked, “You said that C-2 and C-3 wouldn’t be affected, but if we’ve got some wheels turning on changing that code would we not put a moratorium on those as well until that gets resolved?”

Henke said, “The idea is a lot of these items wouldn’t impact the C-2 and C-3 zones, but if the planning commission feels that should be included also it could be. We’d have to define exactly what we are looking at. If we’re looking at a mixed use project could that be impacted by the moratorium? Or just the commercial development, if somebody wants to develop a restaurant would that be?”

Joshua Jewkes, city attorney, said, “I know when people hear the term moratorium it’s kind of a scary word, it sounds very drastic. I will say that this is something that occurs all over the country all the time. This is not uncommon and it’s a very wise planning strategy for a body like this."

Midway has had two moratoriums in the last 20 years, one during the tenure of former mayor, Bill Probst, regarding PUD's as a means to decrease density and increase open space, and the other in 2006 under former mayor, Connie Tatton, to take the ideas in the general plan and codify them. Up until this time the city had a general plan and some ordinances, but no official codification of laws. 

Jewkes said the reasons given by Henke for a moratorium are very important. "The statute that allows the moratorium to go into effect requires a specific finding of a compelling, countervailing public interest. So this body, and eventually the council, will have to delineate and describe exactly what that is. One of the reasons you may not want to include all of the different zones is that for each of those you would have to find a compelling, countervailing interest to describe what that is. I think most of these changes relate to the R zones. So it’s very wise to narrowly tailor the moratorium so it’s not a complete moratorium. I think that is the wise legal strategy for this so it reduces the legal exposure. Michael’s recommendations appear to go about this in the right way and, in my opinion, appear to be consistent with the language of the statute that enables this body and the council to make this decision.”

William Ream, planning commissioner, said, “Is the six months a definitive or is this a maximum. In other words, if you finish the work in four months would the moratorium end?’

Henke said, “It could end in less than six months but that would have to be described in the resolution that would be adopted. So it would be described as six months and maybe Josh can help me out with this, but my understanding is it could be ended sooner if that work is done sooner.”

Jewkes said six months is a hard and fast rule, a moratorium cannot exceed six months. It can end sooner if the work is done and the moratorium is repealed. He recommended setting the moratorium at six months and repealing it if the work is completed early. Jewkes said, "You want to give yourself as much time as you can. And the trickiest part about this process is timing. To make sure that you are ready to go, to consider the things that you need to consider at the time that clock starts ticking so you have the time you need.”

Ream said, “Of the items listed as reasons about six really relate to residential zoning and two of those we already started discussing tonight. So, will those six be prioritized by staff to work on and let the others basically fall to the back of the line?”

Henke said, “We will need to decide which ones will move forward first, and I probably would work with our commissioner Nichols to see which ones he’d like to see … first. Also, the mayor could direct staff which items we would work on first. So I haven’t tried to prioritize those items." Henke added that a survey done by the city when revising the general plan last year showed  "open space was a great concern and reducing density was a great concern, I think those items would be top priority.”

Ream said, “My concern is do we open ourselves to legal action if we say we are doing this for these reasons and then we do things like devote all our energy to creating a committee of economic development and other things that really don’t pertain to the subject?”

Jewkes said, “I think a wise strategy would be, and you are absolutely correct in noticing this, is that you would need to make an agenda of those things that relate directly to the moratorium and begin working on them.”

Ream said, “How many times can you do this? In other words can we do six months, and then say six months or is there, you know, you have to have a gap?”

Jewkes said, “The statute doesn’t address that. I can only tell you what the statute says and there’s very little case law interpreting what the statute means, however, as legal counsel, I would not recommend that you make a plan where you, after the six months you simply do it over and over again, because I think that defeats the spirit of the statute. I suggest that we accomplish what we need to do within that six months, or sooner.”

Kohler asked about the potential large number of applications that will come in "after six months, when the moratorium is lifted? Are we prepared? Do you need to sort of control that somehow?”

Henke said, “There’s really not a way to control that. Once there’s not a moratorium somebody can apply for a subdivision and they will just need to meet the code that’s in place at the end of the moratorium. I fully suspect that before the moratorium is enacted, this will be a recommendation to the city council, that we will probably have a number of applications before its enacted. And so we’ll have a little bit of a rush at the beginning, and then probably one after it’s lapsed also. That’s my suspicion”

Following several questions on the city's ability to get all items through the planning commission and the city council within the six months, Jewkes said, “This is simply a freeze. So look at it as just that, a freeze. When that thaw comes, it is what it is, whatever is done is done, whatever is not is not. It just gives you the opportunity and time to say, wait a second, we’ve got to look at a few things. There’s a rush of building permits, there’s a rush of building and developing going on, let’s slow down and take a look and make sure we’ve got it the way we want it to be, and you have six months to do that.”

Ream said, “My concern would be that people would think that this is some way we are going to try to maintain the rural character of Midway, and it isn’t:  … all those applications will appear no matter what and they just won’t appear during those six months. So, can we use the six months to do something else, raise money, buy land, or something else?”

Henke said, “Well, some of the code text amendments do support preservation and the rural atmosphere, for instance the setbacks and looking at our sensitive lands code and the open space requirements. But yeah, you’re left with what’s in place at the end of the moratorium. There could be multiple things that could happen. One is to go through and we make the code text amendments like we talked about tonight, but also there could be … taking a look at maybe bonding for open space during this moratorium also.”

Waldrip said, “Perhaps to give some guidance to the public comment that will come in a minute, I doubt that there are any of us that are opposed to this concept. We need to give our staff a chance  to take a deep breath and get some of this stuff off the desk that needs to be moved forward so we can implement the general plan. There’s no other real practical solution. It’s just got to be done. We need to have a time to take a deep breath and kind of get things back on track.”

Following the planning commissioners questions Kohler opened the public hearing. 

Note: Public Hearing and Planning Commission Motion to follow in Part Two

As a recommending body only, the Planning Commission has three choices, to decide against the legislation and the proposal dies, to continue the matter forward on their own calendar for further study before finding the legislation meets the city's land use objectives, or to recommend the proposed legislation to city council as worthy of further consideration toward enacting as land use law.

Midway May Rezone Six Parcels to the C-4 Zone

Commissioners Clarify Concerns Before Vote 

by Robin M Johnson

After holding a public hearing on the proposed C-4 zone planning commission members asked a few follow-up questions of city staff before deciding whether to recommend the code text to the city council for further consideration. Following their decision they discussed rezoning six parcels of land south of Memorial Hill in the conceptual C-4 zone.

Steve Nichols, planning commission chairman, asked if the commissioners had any questions for the city staff. 

Nancy O’Toole, planning commission, referenced the developer incentive chart in the proposed C-4 code and said it seems like many incentives need to be completed to get down to the desired 20% commercial, 80% residential. “I don’t think that’s feasible.  This is an incentive, but I don’t see someone coming in and doing all these incentives and then having only 20% commercial and 80% residential.” She said if they can’t reach that “it would defeat the purpose of the C-4 zone.”

Henke said getting down to just 20% commercial is the most likely way a developer would be able to make his project work. With residential at 80%, “If the buildings are condominium like and they are sold, that brings in money rather rapidly. It makes it easier for a developer to come in and create the buildings, create the development. They need to get down to this 20/80 … to (qualify for) the lending to do a project. They are going to have to do items on this chart to get to that.”

Jeff Nicholas, planning commission, asked if developers would be attracted to this code or  “if they would feel like there are too many restrictions to make this profitable, to get financing, to attract commercial businesses, to sell residential units? From a financial perspective would a developer say this will work, we can make money and we can partner with the city to do something really great?  If we approve or adopt this code then what if no developers are on board with it?” 

Henke said, “There’s always the opportunity to go back and amend the code again or go back to the C-2 zone, but we have a lot of parcels that are zoned C-2. They have been that way for decades and they haven’t been built on. Just because we write a code doesn’t mean it’s going to be developed anytime soon.  From conversations that I’ve had, and we haven’t written it really to cater to the developer, but there are developers who are watching this process closely, and so that tells me there is some incentive to actually use this code.”

Kevin Payne, planning commission, said regarding the $100,000 fee in lieu for 1.5 points open space credit; Was it ever considered to exchange an acre of land in lieu for 1.5 points rather than the $100,000 to provide the city with the actual open space in case land prices increase substantially over the next five or ten years, to prevent the city getting short changed and ensure an equal exchange rate?

Henke said, “There are really three different options for creating open space” within the city. In addition to the $100.000 fee in lieu, developers can donate an acre of land with development rights for 1.5 points, or just buy the development rights for .75 points and leave the land in the property owners name to remain open space. Regarding the fee he said, “This code could be amended, if for whatever reason, land values out pace that 5% per year … so we are not short changed.”

Payne also asked how can the city have greater design oversight on the details and make sure this is a good quality development overall. Is it possible a developer could be required first thing to agree to greater input and oversight from the city in terms of design review?

Henke said, “Currently commercial development … goes to the architectural and visual review committee. We do have architectural standards listed in our code, we have a good committee and they do look at all the projects. We do have quite a bit of leeway or oversight just in our code. We don’t require every element because we have a page and a half of those. We make sure there is character to the structure that’s approved through the city. We do have oversight … we can really dictate what they will look like, the outside structure.”

Corbin Gordon, city attorney, said, “From a purely legal standpoint I think you could, legally, create a specific architectural requirement in this zone if you wanted to and attach that. I don’t think that’s an issue that’s been discussed but you could create that if you wanted.”

Henke said the code text amendment is in a more polished form this month,  we are definitely a lot closer towards a finished code than we were a month ago.  It’s expanded in size about double.” He said the planning commission has several options for recommendation to the city council; deny the present code, approve the present code or even modify items like height or density and then approve, or continue the item to a future planning commission meeting for further consideration. “ If you do have a continuance I would suggest maybe a special work meeting between the planning commission and the city council to look at some of the details of the code.”

Nichols asked, “Staff, are you comfortable that the code is in a position it could be sent forward?” 

Henke said, “I think that we’ve made quite a bit of progress over the four months with this. If it went to the city council I’m sure they’d take their time with the code and there would be more public hearings that are required as we go through a code text amendment. I feel it’s still a work in progress but we’ve got it to a point that we could probably move forward.”

Nichols called for a motion. Jeff Kohler, planning commission, made a motion to "recommend that city council consider moving forward the code text amendment to add the regulations to the C-4 zone.” O’Toole seconded. 

Before calling for a vote Nichols said, “From my own personal perspective I think this code is better than it was last time we looked at it; but there still are some details I wouldn’t mind working through further, particularly with city council. But I don’t have a vote.

“Is there any further discussion, other than my comment?” Nichols asked. With no further discussion the Commissioners Kohler, Nicholas, O’Toole, and Payne voted unanimously to recommend moving the proposed C-4 code forward to the city council.

Immediately following the planning commission considered the actual rezone of six parcels, 20.45 acres total, into the new C-4 zone. Henke said, “The current zoning is about 2/3’s C-2 and 1/3 R-1-11. The proposed zone would be the code that we just talked about in the previous item.

“Now there is property to the north that’s in the county and it is in our annexation declaration so potentially some of this other property could be brought into the city, the city at that time can decide what zoning to designate on that property.  (This property) is part of the Whitaker annexation but the county has agreed to keep these parcels in the county for the time being until the property owners come before the city with a petition for annexation."

The six properties include Horizon Provider LC, 2.5 acres; Brent Gold and the John Demkowicz, 8.93 acres; Karl Dodge, 6.17 acres; Thomas Grose Real Estate LT, 0.85 acres; White September LLC, 0.84 acres; White September LLC, 1.14.

Henke said, “This is a legislative item; the city does not need to rezone the property unless they feel it’s beneficial for the community. On the other side, if we don’t rezone the property then somebody could propose a development using the current zoning.”

Kohler asked if the motion coming forth to rezone this property to a C-4 zone Midway doesn't have yet would be like the previous motion, "a punt up to the city council." for consideration. 

“This will be a recommendation to the city council; there will be no need to rezone the property if the city council doesn’t adopt the code. The code will come first, then the rezone,” Henke said.

Nichols again called for a motion, then discussion. O’Toole made a motion to recommend the city council consider rezoning the six parcels into the C-4 zone. Kohler seconded. No discussion was raised. The vote was unanimous. 

Who is the Hardy Foundation?

Why Buy Property on Midway's Main Street?

by Robin M Johnson

The Hardy Foundation was started in 1996 by a family who lives in Boise, Idaho. A.Kay Hardy and her father Earl M Hardy started the foundation to preserve and conserve properties both in Boise, Idaho and in Midway, Utah. Here is a link to a brief description of the non-profit organization.

 https://www.bizapedia.com/id/hardy-foundation-inc-the.html

The Hardy Foundation’s interest in Midway has its roots in their pioneer heritage. Earl Hardy’s great grandfather and Kay’s great, great grandfather is Midway’s own John Watkins, builder of four red brick pioneer homes located on Midway’s Main Street. Watkins immigrated to America from England. He traveled to Utah with the Martin Handcart Company in 1856.

Watkins eventually settled in Midway for a number of years before moving to Provo. He brought with him skills in the English Gothic Revival style of architecture. Watkins once served as an architect for Queen Victoria. Between 1868 and 1878 he built six homes in Midway. The first was built from 1868 to 1869 at 5 East Main Street as a home for his family. Lethe Coleman Tatge was the last family member to live in the home. The house has been empty since her passing in 1986.

In 1876 Watkins was commissioned by George Bonner’s two oldest sons, George, Jr, and William, to build a home for their father at 103 East Main Street. In 1877 the brothers were making wedding plans and decided to commission Watkins to build two more homes at 110 East and 90 East across the street. Watkins finished the homes in time for the double wedding of George’s two sons in January of 1878. The brothers were married in the front parlor of their father’s home. Following the celebration they walked their brides across the street to their new and completely furnished homes.

The Hardy Foundation began buying property in Midway as early as 1996. Today they own ten properties in Midway. Nine are homes, one is a business. Their holdings include two of the homes Watkins built on Main Street, the original John Watkins home at 5 East, and the William Bonner home at 110 East. Some of the properties were purchased because of a connection to Watkins, the main purpose for purchasing these and other Midway properties is to protect Midway’s historic pioneer heritage particularly on Main Street.

For more information follow the link below to the Utah Heritage Foundation (UHF) website. UHF gave their Heritage Award to the Hardy Foundation for their work in rehabilitating close to a dozen properties in Midway. This page includes a biographical sketch written about the Hardy Foundation when given the Heritage Award. 

http://www.utahheritagefoundation.org/tours-and-events/heritage-awards/item/772-hardyfdnha

Midway Main Street Traffic Congestion

Lights or Roundabouts?

by Robin M Johnson

Note: Information in this article originally appeared on the facebook group page Midway UT Messages & Milestones over two months ago.

When a member of the group Midway UT Messages and Milestones noticed 'Blue Stakes' spraying a lot of lines on Main Street in late February she posted, “I am saddened by Midway seeing its first two traffic light controlled intersections.” Further down the post she said the traffic lights were planned for Center Street and Main, and also River Road and Main. “My question is if traffic has increased to that point, why isn’t Wasatch County requiring emissions testing?”

Several members responded to the post expressing their desire for roundabouts at both locations instead of traffic lights. One said seeing traffic lights will be weird, but those two intersections definitely need some control. Another agreed traffic is a huge problem and wished for pretty roundabouts over traffic lights, but nobody asked. 

This post led to an interview with Mayor Colleen Bonner who did ask the Utah Department of Transportation (UDOT) about roundabouts for Midway. First she said Main Street is not a city road, it is a state road. Since it falls under the jurisdiction of UDOT and they are not required to inform the city council of their plans, Bonner said she was not aware UDOT had plans for traffic lights in Midway.

When Bonner first heard the state was planning on putting in a traffic light it was the same day UDOT was holding a meeting. She immediately got in her car and went down to UDOT’s meeting, taking them off guard. She discovered UDOT had conducted its own traffic studies. Several times in the past Midway has requested UDOT conduct traffic studies such as when Midway City partnered with UDOT for the Main Street Beautification project over ten years ago. However, UDOT is not required to inform a city when it runs its own traffic studies. Bonner asked if they didn’t think that, just as a courtesy and for a local perspective, it would be nice to let the city know their plans.

UDOT told Bonner that the requirements for a traffic light in a small, rural city are different than they are for big cities. The number of trips that came back from the study based on Midway’s current road sizes and its current population met UDOT's requirements and merit installation of traffic lights at both intersections.

Bonner next asked if they had conducted a study for roundabouts in both locations. According to the mayor UDOT said they had not because they would not pay for roundabouts. Bonner said the majority of citizens in Midway responding to public surveys prefer roundabouts and asked if they would consider doing a roundabout study based on citizen preferrences. She said if the intersections qualified, Midway might want to try and raise the funds to pay for them.

UDOT agreed to conduct the roundabout studies. Unfortunately when UDOT's study was completed neither intersection meets today's criteria for roundabouts. UDOT now requires more space for a roundabout than when they were first proposed along with the Midway Main Street Beautification project under former mayor, Bill Probst. The intersections are both too small for today's standards. Another factor is the Hardy Foundation which owns five of the eight corners at both intersections is unwilling to sell any of their property for roundabouts. The Hardy Foundation now owns property on three corners at the Center Street intersection and two corners at the River Road intersection.

UDOT plans to install traffic lights at both intersections. Mayor Bonner met with UDOT in two on site meetings held the first week in March to discuss the scope of both projects. Bonner said two different design companies have won bids, one to do River Road and Main, the other Center Street and Main. In March UDOT was at the very beginning of the process. The traffic studies were completed. UDOT is currently in the design phase. Once the design is approved UDOT will run a cost analysis. Following cost approval installation will begin.

In March Bonner said with all that needs to be accomplished the traffic lights will probably come to Midway in the summer of 2018. Bonner said UDOT will choose the type of poles and lights to install, Midway has no say in the design. Midway City plans to pay to paint the light poles to match Main Street light poles.

One month ago, Wes Johnson, city engineer, said in the planning commission’s April 19 regular meeting the traffic light at Center Street and Main should be installed this summer. The River Road and Main traffic light may be installed next summer. UDOT did not plan to widen Main Street from 300 East to 400 East until Johnson asked them to in order to accommodate a wider intersection for center turn lanes. UDOT is looking for additional funding to cover the extra cost to widen the block and complete the project. 

ROUND ABOUT BACKGROUND INFORMATION

City leaders have conducted surveys  of Midway citizens at least every five years in conjunction with the state required revision of the general plan. Each time the majority of residents say they prefer roundabouts to traffic lights, although there are residents who strongly oppose roundabouts and prefer traffic lights.

Roundabouts have been discussed in numerous city meetings since Bill Probst was mayor. They have also been studied for feasibility several times, the first being for the Midway Main Street project. The scope of that project included Center Street and Main, but in the original discussions reconfiguration of Main Street was proposed from 200 West to as far as 700 East, then eventually cut back to 500 East which would also have included River Road and Main. 

Traffic Studies for both intersections were conducted. Both intersections qualified for roundabouts at that time. Main Street and the south side of Center Street are state roads under the jurisdiction of UDOT. Midway City has no jurisdiction over state roads. River Road is a city road.

Prior to the Main Street Beautification project, UDOT and Midway City did a cost analysis and discovered their combined funding only allowed for a five block project from 200 West to 300 East, so the River Road roundabout was postponed. Since UDOT’s roundabout qualifications were smaller then, a roundabout could have been installed at Center Street provided Midway City agreed to pick up the full cost. UDOT was not willing to pay because traffic numbers compared to population did not warrant roundabouts at either intersection.

Midway City planned to pay for a roundabout on Center Street. However, at that time the Hardy Foundation purchased one piece of property at both intersections specifically to block roundabouts on Midway’s Main Street. They declined selling the portion of their property needed for the roundabout to the city. Since then they have added three more properties associated with the intersections, and several other properties on Main Street with the intent to keep them the way they are, and to keep Midway rural. Some of their properties are on the Utah State Historical registry. 

Note: Forthcoming article based on interview with UDOT regarding the process for updating and maintaining state roads. Feel free to post questions to ask UDOT.

New City Center Moves Forward, Part Three of Three

City Response to Public Concerns

by Robin M Johnson

Last of a three part series, this article addresses Midway City staff and planning commission’s answers to questions raised by residents in a public hearing held April 19.

Michael Henke, city planner, began the city response answering two questions raised by the public. First, has the city considered shopping and residential like the Riverwoods?  Henke said, “This code actually allows and encourages commercial on the lower and residential on the upper floors.” 

Second, have there been any financial studies to show the population and tourism can support the commercial and arts?  Henke said, “As for completing a Proforma on the property and doing a financial analysis, we have not taken that step at this point. It is already zoned commercial. This would most likely increase that commercial use and also the sales tax, but we would have to actually hire a firm and go through and do that analysis. If we are directed to do that, we will do that.”

Steve Nichols, planning commission chairman, said, “… without knowing what businesses are going to be there it’s very speculative as to what those numbers would be; … we assume that anyone willing to invest in a business there will do their homework as to whether that business is likely to succeed.”

Wes Johnson, city engineer, answered questions on traffic congestion. Main Street as a state road falls under the jurisdiction of the Utah Department of Transportation (UDOT) which has plans to handle traffic congestion. Johnson said “Possibly this summer, but absolutely next summer, UDOT will be installing a traffic signal at 400 east.”

Johnson said UDOT ran traffic studies at 400 East and also Center Street and quickly discovered both intersections warrant a traffic signal on data collected on three criteria; the delay, the stop time, and the congestion. The design is underway at UDOT for a traffic signal at Center Street and Main Street. It will be installed this summer.

One obstacle holding up installation of a traffic signal at 400 East is a fully widened Main Street at 300 East that narrows down to two lanes with no center or left turn lane at 400 East. The road was widened and a center turn lane added with the Main Street beautification project in the early 2000’s from 200 West to 300 East.

Johnson said, “… this will need left hand turn lanes, center turn lanes; and I’m concerned that we have a fully improved cross section at 300 East. I don’t want the road to narrow down after 300 East then widen back at 400 East and narrow down again. So UDOT is looking into trying to acquire funds to widen from 300 East to 400 East.

“ Ultimately, it’s our master plan improvement to have a center lane on Main Street and, hopefully, down through to Michie Lane and down through the bridge where the sewer plant and that fishing access is, … and then, in our master plan, is a center turn lane for River Road,” Johnson said. He added it could be ten, fifteen, even twenty years before some of the improvements in the master plan happen. The city’s policy is to require developers to put in those improvements associated with their developments, Johnson said. Additionally, there are plans in the proposed C-4 zone for an access on River Road south of Memorial Hill between two existing homes, a roadway that would connect and serve as an alternate route into and out of the area.

Height concerns were addressed by Nichols and Henke. Nichols said in the new C-4 proposal “a building’s roof has to fit within that height limit. The roof cannot extend above the height limit stated.” Henke said the original proposal allowed 55 feet with an additional 50 percent allowance, 27.5 feet, for architectural elements or decorative features, designated as non livable space. “The code does say a maximum of four stories and a maximum of 55 feet for the top of the roof itself, in that center section.” The mid section height limit is 45 feet with three stories and the perimeter is 35 feet with two stories, these height limits are a permitted use.

“If something is of worthy value architecturally speaking, yes, it could be added on top, if it was approved,” Henke said.  Architectural elements are still allowed above the maximum height allowance, but they are considered a conditional use. As such they require approval of the Architectural Review committee and the City Council, ensuring many eyes will review the request. 

High density concerns were addressed by Henke. Density in the initial proposal was 40 units per acre, compared to the C-2 zone at 20 units per acre. In the new C-4 proposal density is adjusted down to 30 units per acre as it moves forward to the city council. Henke pointed out density could be adjusted down even further once the proposal goes before the city council.

“The one thing that’s uncertain is what would make a development work of this magnitude. How many residential units would there need to be to make it pencil out for a developer?" Henke said. "And that’s really unknown right now, but that’s something that needs to be considered. If it is toned down enough it won’t be attractive to a developer.” He added, “A developer does have to acquire open space offsite that reduces density in the city also.”

Referencing the observation there are no parcels left along Main Street large enough for a 20 unit per acre development as currently allowed in the C-2 zone, Henke said, “Developers could buy up and combine some of those smaller pieces together and create a larger development … if we do go through and reduce density on the rest of Main Street … we would be avoiding that scenario.”

Concern that allowing 80% residential would create a burden for the city and also cancel out any commercial gains was addressed by Henke. "For every $1.00 brought into the city from residential development (on quarter and third acre lots) we spend $1.16” on services that are subsidized by other forms of revenue. Streets are a large portion of that cost.  When you have density that’s really closer together you don’t have those same costs. So it actually ends up not being as much of a burden,” Henke said. It may even be “a positive when you have higher density. It’s when you spread out the density and you have a lot of roads that the cost comes in.”

Following the public hearing planning commission members also had question for city staff before they made their motion to recommend the proposed C-4 code to the city council for consideration. 

Note:Article to follow on the six parcels of property to be included in the proposed C-4 code if the city council decides to adopt it. Planning Commissioners questions after the public hearing will be included in that article. 

New City Center Moves Forward, Part Two of Three

Public Perspectives Pro and Con

by Robin M Johnson

Midway City Council Chambers were overflowing at the planning commission’s April 19^th regular meeting. Part one of this series presented the city’s reasons for proposing the C-4 code outlined in the meeting. This article will focus on the purpose of public hearings, the planning commission’s job, and the public comments made during an impromptu public hearing held on the proposed C-4 zone. Part three will address city responses to public comments.

Utah State code designates a city planning commission is the land use authority. For ordinance and rezone amendments like the proposed C-4 zone one public hearing is required by the planning commission. Public notice in a local paper and in three public places is required 10 calendar days prior to the public hearing. A planning commission is not required to take public comment in a regular public meeting, but can choose to take comment or open a public hearing..

Commissioners are appointed to uphold land use ordinances. Public hearings are for commissioners to get information from the public and to inform the public regarding the subject at hand. Commissioners are to listen to the public, they are not to pontificate or try to convince the public what is being done is right. They ask why the city wants to regulate a specific land use, and decide how to regulate it in accordance with the general plan. They vote based on whether the proposed use fits the general plan not on whether it is popular with the public or on their own personal biases. (See “Land Use Training Handbook for Effective Land Use & Decision Making, for Elected and Appointed Officials in Utah, May 2016)

Steve Nichols, planning commission chairman, opened the public hearing, “Since we’ve already had public input on this issue at least twice, we wouldn’t normally have public comment. But since you’re here we certainly appreciate you being here and I want to take the time to entertain public comment. There’s obviously a lot of people and a lot of you that would like to comment, I am going to allocate at least 30 minutes for public comment.”

Chris Johnson, resident, said, “What’s not to like? I like having some more development downtown, some commercial, retail, and residential sounds really appealing if it improves the economic situation.” He asked, “Has staff considered whether this could be structured so that it’s like City Creek in downtown Salt Lake? … having commercial and retail on ground floor and residential above? It would promote synergy and vitality of the development.”

David Tew, resident, said,  “For the past one and a half years I have been involved with the arts, leading a coalition (for) a visual and performing arts center located in Heber Valley,” Tew said. “To support arts and make a destination place for people who want to be involved in the arts. The coalition identified eight locations … the recommendation of the coalition is the location you are looking at now as the ideal … because of the synergy that exists with access to boutiques, restaurants, and arts” in one place." Tew paraphrased Utah code, “The decision of municipal bodies should always evaluate what provides for the safety, health, prosperity, moral well being, peace, comfort, or convenience of the inhabitants of a given municipality.” He added, “Some of the considerations are whether that decision will accomplish the objectives in the areas of economic development, job creation, affordable housing, job preservation, preservation of historic structures and property, and other public purposes. I for one endorse the recommendation because I think it will be a benefit to all, and I … would not like to see a tax increase of 64%.”

Victoria Romney, resident, said, “In the time we’ve owned our home we’ve seen developers come in and put in residential development, some of which are lovely and some of which are really ugly. It would be delightful to see a planned area like this with the community, art and residential features so well thought out. Thank you, all of you, for your wonderful creativity and thoroughness. My question is have there been any financial studies, so we have a pretty good (projection) that the population and the tourism here can really deport the commercial and art areas of this? Because we want this to be maintained, we don’t want this to turn into just another residential fail.”  

Inez Wilde, resident, requested in the proposed 15 foot buffer on the perimeter of the project provided for neighbors, if residents could have the option to require a masonry wall and trees on the other side of the wall as a further buffer away from the project. “I am surrounded by that (C-4 Zone) and Main Street. I think that people should have the opportunity to make that decision if that’s what they would like. For noise and light and everything else I would sure request that there be a masonry wall and trees to buffer around the property. I think the arts is a worthy project, but I also know that when they built that huge art center down at Dixie College, that being next to a university really helped with the finances.” Wilde added, “It cost a whole lot more for upkeep of the building, equipment, employees, and other things than they planned on. We need to think about … making sure the streets are wide enough for delivery trucks, and that there’s plenty of parking, so there’ll be no parking in my yard,” Wilde politely said.

Ryan Starks, Economic Development Director for Wasatch County, said regarding tourism, “We recently hired a professional, an international branding expert named Robert Brooks. He secret shopped our community over a 70 day period and then he presented his findings to a group of about a hundred about a month ago. In that presentation he pointed out a few things that I think are worth sharing.” Starks outlined Brooks main points about growth rate: Utah is the fastest growing state in the United States, with over a two percent growth rate state wide. Wasatch County has grown by 4.8% in the last year. Since the 2002 Olympics the county population increased 65%. Midway City had a population of 2420 in the year 2000. Today there are approximately 5,000 residents in the city. In 16 years Midway’s population has more than doubled. Starks said, “I think that growth is going to continue to come.” According to Starks the Heber Valley Chamber of Commerce (HVCC) believes some of the best economic development opportunities align with the preservation of open space to create an environment where people want to gather. HVCC also recognizes Main Street as a commercial district within town and the proposed C-4 zone as a prime opportunity for an excellent development. Starks said, “I visit a lot of other cities and counties throughout the state and they are dealing with smokestack factories and things that are undesirable. If anyone of these cities or counties had the opportunity to have a project of this caliber, a real crown jewel, I think they would salivate at the opportunity. I want to impress upon us that this is a very unique opportunity that may go away if we don’t act on it. I think there is some real commercial value … I think this is a win/win across the board. If we don’t take action, if we look at some of the other growth along Main Street … you end up with more mortuaries or drug rehab centers. Hopefully we have this opportunity to create something very special.”

Mindy Hardy, resident, said, “I grew up in Kaysville in the county surrounded by farm land. If you go back to my house now across the street is a giant Smith’s Super Center and a gas station. I sympathize with those who live there because it’s hard to be in that position, but at the same time I’ve seen what it can turn into and how undesirable it has ended up for the people that still live there. My favorite thing from what I’ve heard tonight is that this is an opportunity to take the inevitable commercial growth in Midway and condense it into one, attractive, pleasant area and therefore that can maintain the Main Street that we all love now. To me that’s a huge plus. My question is there’s a standing proposed European development, is this code specific to that plan or if the code is changed to the C-4, is that open to any development?” Starks said. Nichols answered immediately, “It’s open to any developer that acquires the property and meets the code.”

Roger Urry, resident, said, “I am not against the proposed development, I love the arts … I think the arts center is a wonderful idea. My main concern, I would ask you to really consider the traffic that is going to be focused into that area there. Between 580 East and the Hamlet there is about 700 – 800 feet. There are already three working entrances into the Main Street on the south side, on the north side there is the potential to have more with crossing 580 East, 700 East, and the old Mill House. I don’t really understand how you are going to control all that traffic with our neighborhoods being hemmed in with traffic already on certain hours of the day. So would you please come up with a really good plan?”

Candyce Nowers, resident, said, “I have major concerns. Probably my biggest one is still the height … it’s actually 4.5 stories … plus the 20 feet that they want to put a steep roof on. If any of you have been down to Costco recently, where they put those apartment buildings in, those are four stories high, without a high roof on it. Their roof is quite low. To me, they look big even when I am far away and I look at them. They do not look like a rural town or rural city. They look like a big city. I recognize that on Main Street you are saying it is zoned 20 units” per acre, Nowers said. “Nobody on Main Street right now owns enough property to put that kind of unit in with parking … I own 8/10’s of an acre. So there wouldn’t be enough room. On 20 acres at 30 units per acre “if the developer decides not to put what we are talking about in, he could actually put in 480 apartments which would be 1200 people in that one small space. That’s a whole lot of people.” Nowers said she calculated that 20 acres is equal 0.03 square miles. “The state of Utah considers 1000 residents in one square mile to be urban and no longer rural; which means we would be putting an urban area in that little tiny area, that concerns me.” Not knowing what the developer is going to do is the reason Nowers gave for her concern. “I don’t know about you but I have lived a lot of years in this life where federal governments and state governments have said, oh if you pass this we promise you we are going to go this direction, we won’t go the direction that it could possibly go. I just still want Midway to be rural,” Nowers said. “I have seen a lot of changes in my life; I grew up here when it was really small. I recognize that change needs to come. I recognize that we need to put something in there that is beneficial for the town. I’m just concerned that we do it in such a way that leaves us open for things that we don’t want.”

Dave Carson, resident, said, “I think this is a great project, it’s a great idea. As I looked through the C-2 zoning text today, there were some restrictions, in fact  … that would not be permitted; … construction shops, electrical and plumbing, repair shops, battery shops, and storage outlets … Those things are needed, but from a Main Street Midway point of view having those restricted for a nice development like this is actually a great feature. I did purposely drive by the building on 200 East, I have never heard anybody suggest that the building was an eyesore, or a blight on the city because it was too big or too tall. And it’s sitting right there. The setback in C-2 is 10 feet … its right on the street. That building in (the C-4) would be setback off of Main Street 300 feet. That’s what I visualize and see that building. We are okay with it right on the street, seems like putting it back 300 feet should be okay.”

Amaria Scovil, resident, said she had concerns about things said by Michael Henke, city planner, during his presentation. First, making it attractive to a developer; “I get concerned when we have to make concessions to developers because the cost of the property is so high. Why can’t it be that they meet somewhere in the middle so that we can have a development there, commercial, residential, whatever, but it meets in the middle to where maybe the cost of the property comes down a little bit so that it isn’t such a burden to the community?” Another concern, ‘having high density residential is a burden to the community’, because for every $1.00 the city collects in property taxes, it pays $1.16 to provide city services. “So why do we consider, then, putting that much residential there if it’s going to bring a burden? You are looking to bring in a greater tax base, yet you are going to pack in all this residential … that kind of seems like a little bit of a conflict to me.” Scovil added height allowances and setbacks to her concerns. “I’m just trying to understand why are we going to go so high and so close to the residential borders? When you look at the setback off of Main Street, it’s at 200 feet … yet it’s less than that when it’s bordering residential. I am just wondering why it’s more important to not border Main Street with the height restrictions as it is on the residential people who are right there.”

Sheila Probst Siggard, resident, said, “It’s been stated that this project would be a crown jewel. Let me state very adamantly I think a crown jewel of Midway is an open Memorial Hill. My father and two of my Uncle’s names are on that plaque, so I go very deep … the fireworks we have in Midway would have to be decreased with that much density … I would say leave some open space by our crown jewel and increase commercial density in other places. I would say let us support our local businesses that are already here. One of the comments about this project was it would bring synergy and stimulates the other businesses. I disagree with that. There’s so much shopping online these days and people only have so much time. They will either shop there or the local businesses where they are. When we have increased development we need more schools. Our school is bulging now. More people lead to more crime. There are problems with water. We had the fence replaced by the city one time because the buses as they come down my little street that is full of potholes right now cannot be accommodated … No one’s roots go deeper than mine about Midway and, again, the crown jewel of Midway is Memorial Hill.”

Nichols said, “Thank you all for your comments. We’ll now close the public comments and open up the commission discussion.”

Note: Midway City Response to Public Input, Part three.  Coming soon. 

New City Center Moves Forward, Part One of Three

Reduce City Services, Raise Taxes 64 Percent, or Create Commercial Tax Base

by Robin M Johnson

Citizens turned out in large numbers Wednesday, April 19, filling Midway City Council Chambers and spilling out into the foyer. Steve Nichols, planning commission chairman, made an opening statement regarding the proposed C-4 code to create a new zone for mixed use commercial and residential development south of Memorial Hill. Nichols then gave time to Michael Henke, city planner, to discuss the newest version of the code. Nichols next opened a public hearing limited to 30 minutes of public comment. After closing the public hearing the commissioners and staff discussed the code as currently written and decided to forward the C-4 zone code to the city council for further consideration and refinement.

This article will focus on Steve Nichols comments and Michael Henke's presentation. Part Two will address the public comments. Part Three will outline the commission's response to public concerns and their decision to move the C-4 legislation on to the city council.

Nichols said the purpose of adding regulations to the new C-4 code is to create a community gathering area focused on tourism and retail having a walkable central plaza with surrounding commercial and arts related businesses, along with residential. The general area is from 400 East to 700 East along the north side of Main Street.

Nichols asked citizens to pay close attention to how the current proposal is introduced. "We have been looking at this issue for a couple of months now," he said. "Social media may not have been accurate or is no longer accurate."

In 2010 Midway qualified for imposing a state resort tax on commercial sales. Utah's
Transient Room Tax (TRT) is based on the ratio of total nightly rentals compared to the  total residential homes within the city limits. The Homestead, Zermatt, and all other rooms or camping spots that are rented for a minimum of two weeks out of the year met or exceeded the 64% requirement. Nichols said in 2017 Midway will add an estimated $425,000 to the city budget collected from this tax.  

"Since the 2010 Federal Census Midway had grown rapidly," Nichols said. At the 2020 Federal Census Midway will not have the ratio of rental rooms to residential homes that are required to qualify for the TRT. In addition to residential homes being built at a rapid rate, there are currently no applications before the city for more nightly rentals. Also, at least two of the cities nightly rental facilities, Inn on the Creek and Johnson Mill Bed & Breakfast, closed doors as nightly rentals and reopened as Recovery centers. 

Nichols said without the resort tax funds the city has two immediate options: 1) reduce city services or 2) raise property taxes ... by an estimated 64 percent. 

"Another alternative is to create more commercial tax base that can help fill the shortfall," Nichols said. "The need to control property taxes through more commercial development cannot be simply ignored. As a result the city is looking at ways to encourage commercial development, particularly development that will conform to the nature of the community while best addressing our need for a commercial tax base. Clearly we would prefer some types of development over others as better suited to Midway. This effort has led our city council and staff to propose the new C-4 zone," said Nichols. 

Next Nichols outlined the city process for new legislation. "Procedurally it goes before the planning commission first. Our task is to apply our experience with land use in Midway generally to consider and possibly refine the proposal," 

Other points Nichols made include: 1) a key function of the planning commission is to solicit and receive public input, 2) when the planning commission has finished its work it will most likely make recommendation to city council, 3) the City Council makes the final decision on whether to enact new zone, and decides what the provisions of it will be, 4) the planning commission's recommendation is not binding on the city council, they can follow or disregard it as they see fit. 

Cutting to the heart of the issue lies the question: why create a new commercial zone in Midway? Nichols said, "The intent is to attract commercial development that for a variety of reasons was not attracted in the past." Hopefully the new code will make this area of Midway's commercial zone "more attractive to development by relaxing some restriction such as height and density, while also limiting types of business that can be located in the zone to those that are thought to best fit the community. This is the only undeveloped parcel remaining on Main Street of significant size where this approach could effectively be attempted.

"Another key component for some … is a community arts center with an outdoor amphitheater." Nichols said.  He described two attitudes toward the art center, on one hand some want the arts center in this location to foster the commercial tax base needed for the city, while others feel the arts center would be better located outside the city limits as an answer to address noise and traffic concerns. 

"I have … some sympathy with both of those views," Nichols said. "We all value the rights we bear over property we own, for that to be we also have to respect others property." He said the need to respect property rights "limits what we as a community can do to control the use other citizens’ make to privately owned property."

Nichols said in this meeting we are considering ... one area where "we as a community can relax restrictions to foster development." In "past meetings we heard extensive public comment that original C-4 proposal did not strike the right balance."

Revision requests to the proposed C-4 zone were given by Nichols to the city staff at the conclusion of the planning commission's last regular meeting in March in direct response to public concerns. Nichols reviewed his list of issues to revisit including building height allowance, residential density, parking lot requirements and other parking issues, buffer zone requirements, phasing of residential vs. commercial facilities, and an analysis of tax revenues to be expected in C-4 zone vs. current C-2 zone.

At this point Michael Henke began his presentation.

History:  The area is in the proposed C-4 zone is approximately 20 acres in size and almost all has been for sale over the past several years, Henke said. "Unless someone purchases (the area) to keep as open space, it’s going to develop."

Four applications went before the city in recent years including two large commercial developments for storage units one east of Midway Automotive was pulled by the applicant before it passed the city council, the other west of Midway Automotive was pulled by its applicant after it passed city council. Also two different residential development proposals on the north side of the property were made, one a PUD, the other a subdivision.  

Regarding residential proposals Henke said most of the property tax collected in Midway goes to the school district. A very small percentage, less than one percent, goes to Midway City and residential is not a net gain. "The city gains revenue from the sales tax that comes along. There are a lot of options outside Midway for shopping so Midway doesn’t gather very much revenue," Henke said. residential proposals aren’t seen as very favorable, especially in area close to Main Street and not developed. “Most of our Main Street is developed with either housing or commercial; there are not a lot of large parcels left.”

General Plan: “When we look at revision to code, we need to look to our general plan," Henke said. "It’s the guiding light to our city and creates the vision of what we would like to become in the future. The general plan has a number of chapters, we reviewed the plan all last year.” 

Economic Development:  This chapter in the general plan “talks specifically about this area and trying to use this area as a way to create a tax base for the city,” Henke said. The comments in general plan support looking at this property to build a commercial tax base. Since residential property tax is not a net gain to the city the general plan states, "for a community to be fiscally responsible and viable, there must be a source of increased revenues not associated with development." Further code states economically successful cities recognize property tax increases have many obvious drawbacks while sales tax revenues expand service and retail opportunities and promote job growth. 

Zoning Map:  Henke said the zoning map shows the limited commercial area within the city limits. "We have a commercial area in the center relatively small compared to the rest of the map … probably three percent of Midway is zoned commercial, 97 percent is zoned for residential growth.” In the proposed C-4 area about 2/3 is currently zoned C-2. The top third is currently zoned R-1-11.

The C-2 zone was designated Mixed Use, allowing 20 residential units per ace, for at least a decade, Henke said. So far its use has been very limited, most commercial on Main Street is only one or two units associated with a business. Currently two larger mixed use developments are being built on Main Street. Since developers are not attracted to the current zoning and the commercial tax base hoped for is not being realized Henke said, "the city needs to take a closer look at the overall density of what could happen in the C-2 and C-3 zones."        

Main Street:  Henke began outlining the newest proposed C-4 code with Main Street. He said the intent of the C-4 zone is to create a vibrant, active community gathering area with retail, restaurants, arts related industry, and with residential. Much like the River Woods gathering area on a smaller scale. City code defines Main Street as "the economic, architectural, and historical heart of Midway ... this main corridor has great potential to provide a public gathering place for residents and tourists to interact and coexist with one another ... the area will cater to the pedestrian experience (with) access to open space such plazas, street furniture, pocket parks, and trails"

Henke defined the challenge Midway has faced creating a pedestrian friendly environment and pointed out the new C-4 zone as ideal to create this vision. “Main Street is wide," he said, "the blocks are wide, about 600 feet in width per block, it doesn’t lend itself to a very walkable community especially with the spacing of historic structures. It’s difficult to create a walkable environment with the hand we’ve got right now. But we can do that just off of Main Street.” 

Planned Performance Code:  The proposed C-4 zone includes a Planned Performance Code designed to change the ratio of residential and commercial units on a project. This is a method for the city and the developer to create a partnership where the city gives the developer attractive incentives in exchange for providing features and amenities the city desires to include in the development. Developers are given percentage increases for agreeing to items on the list which increases the residential density and decreases the commercial density of their project. 

 “If a developer does certain items in the code, then the city will give them certain benefits.” Henke said. The standard for commercial zones is 20% residential/80% commercial, in other words one home for every four businesses.  The goal is to flip the ratio around in the mixed use development as proposed in the new C-4 code, to 20% commercial/80% residential, or one business for every four dwellings. Henke said this helps developers because the 20/80 ratio is what a lender will lend to with this type of a project.

"In order for that to happen certain amenities need to be built within the development to make it a very nice development," Henke said. The city is offering 1-10% residential increase for a nice water feature, 1-5% for a fire feature, 5% for a stage for musical performances, 30% for an outdoor ice rink, 35% for a three screen movie theater, and 20% for land donated for an arts center/amphitheatre. Some of the amenities have very high numbers, according to Henke, in order to create the ambiance the city is looking for in the development.

Open Space: Three options were added to the Planned Performance Code since the last meeting that would increase open space within the city, Henke said.

Option One: Fee in Lieu of Open Space.  “For every $100,000 donated to the city to purchase open space rights it would be worth 1.5 points on the scale. That would increase by a 5% rate each year based off of increased land values as time goes on," Henke said. Developers could pay an open space fee which would create a fund the city can use to purchase open space

Option Two: Open Space Outside the C-4 Zone.  "Land that is developable, we wouldn’t want to receive wetlands or steep slopes that couldn’t be developed, but land that could potentially be developed," Henke said. This could result in developers buying developable open space within residential city limits and donating the property to the city to keep as open space and not develop. "So really, to reach the maximum on this scale somebody would be donating $1.3 million, or roughly 13 acres of property that’s worth $100,000 per acre," Henke said.

Option Three: Purchase Development Rights.  "When you purchase development rights from a property, the land owner continues to own (and maintain) the property but they are not able to develop the property any further ," Henke said. "Since the land owner continues to own the property, usually that’s a very rough estimate; it’s about half as much as buying the property directly. That’s given .75 (points on the scale). Basically your money goes twice as far going that route." With this option the developer purchases the development rights off a property  to use within the C-4 zone so the land remains open space and can continue to be farmed.

The Open Space options are "fairly exciting," according to Henke, "having the potential of transferring development rights within the city from fields that we want to preserve to the new C-4 zone ... We actually reduce density in areas of the city … it effectively creates open space.”

Permitted and Conditional Uses: In the proposed C-4 Zone uses are reduced to about half the number allowed in the C-2 Zone in an effort to create the ambience the city wants, Henke said.  "A land owner in C-4  district is essentially losing buyers for their property because if somebody wanted to do a gas station or car wash it wouldn’t be allowed." There are both permitted and conditional uses.  Permitted uses must be accepted by the city if the application meets code, while conditional are reviewed through a public hearing process and allow the city to add conditions to the use to mitigate nuisances.

Nuisance Restrictions and Buffering for neighbors: The city plans to mitigate noise, lights, and other nuisances the best it can to protect those living in area. Nuisance restrictions in the existing code for noise will be enforced. The Dark Sky ordinance will need to be adhered to for lighting within the city.The proposed C-4 code lists requirements for a physical buffer; four foot berm barriers, landscaping with trees every 25 feet and two rows of bushes staggered every five feet, and a minimum 15 foot setback for structures or parking.

Density:  "The C-4 initial proposal allowed 40 units per acre, tonight its reduced down to 30 units per acre," Henke said. He added this number not set in stone, it could change when it goes before the city council, 'but that's the reason we go through this process, to make sure it's a benefit and not a negative to the community."

Density Big Picture:  Henke said the city could reduce the overall density of the city and described how that could be done.

"If we do increased density, we take a look at the rest of Main Street and pursue reducing density in those areas so we can preserve Midway’s Main Street the way it is now," Henke said. "What a lot of people really love about Midway is the Main Street, so we could reduce that potentially from 20 (units per acre) to one commercial unit with one associated residence.

"That’s a separate code text amendment that would need to go through the planning commission and city council. But overall, the density in Midway could reduce ... It would help preserve historic Main Street because there wouldn’t be large mixed use projects proposed on the rest of Main Street. If somebody did do a mixed use it would just be one residential unit with a store or a restaurant ... Most of this (C-2/C-3 zones) is developed with either homes or businesses, but this would help reduce redevelopment or even the demolition of some of the structures on Main Street." Henke said.

Traffic Impacts:  "Traffic will increase locally around the C-4 zone, but it would also increase as the C-2 zone developed, "Henke said. He added traffic might increase more as the C-4 zone especially on Main Street (400 to 700 East), possibly up River Road, and over to Heber on Highway 113. Looking at the big picture if  the density is reduced on the rest of Main Street (200 West to 400 East) traffic will potentially be reduced in that section from what it would be if Main Street were developed to the current C-2 density.

Height:  "The first proposal height allowance was 55 feet (in the center of the zone), that basically allows four stories, and allowed for architectural elements to go above that limit," Henke said. "There was a number in the code of  87 feet based off of a 50 percent increase for non livable space for architectural elements (no livable space above 55 feet). Henke said the city wants to be respectful of those living on the outer edges of the zone so the height allowed on the perimeter next to neighbors is 35 feet, the same as what is allowed in the rest of the city.

"The proposal now is 55 feet," Henke said. "Any architectural feature built above 55’ would need to be reviewed by the visual and architectural committee and go to the planning commission and then be approved by the city council. There would be a lot of eyes looking on anything above the 55’ level."

There are three height allowances proposed in the zone. Around the perimeter on the east and west sides for the first 100 feet the height allowance is 35 feet, also the first 200 feet from Main Street is allowed 35 feet height. Next on the sides from 100 to 200 feet the height allowance 45 feet. The center of the zone is allowed 55 feet. Henke said the buildings on the perimeter would be two stories, then increase to three stories, and in the center increase to four stories.

"The idea is to mitigate visual impact on anyone outside this district," Henke said."The farther away you are from a structure, the lower it seems from your perspective." Height is another element of the code the city council could adjust when the proposal goes before them. 

Purpose: Echoing Nichols previous comments Henke addressed the intent of the proposed C-4 code to create a vibrant active environment, synergy between different uses, a pedestrian friendly environment, a greater tax base, a place to promote the arts, and a community gathering area.

Project Phasing:  Henke said the development would most likely not happen overnight. A project of this magnitude will take several years to build. As a safe guard the city needs to make sure each phase has the "correct percentage of commercial square footage as compared to residential so somebody couldn’t come in and just build residential initially and try to hold off on the commercial. There would have to be the correct proportion based on the incentives they received."

Parking Requirements: "We have not proposed an adjustment from what’s already required in the code," Henke said. Commercial parking allowance is one stall every 250 square feet of commercial space. Residential is one stall for every dwelling unit.

"A developer goes through quite a bit of analysis, Henke said. "Parking is kind of a death nail to the business … we can increase numbers if feel it's not sufficient, we have not gone through an exercise to find out what would work on the property."

Henke said, "That covers most items Chairman Nichols mentioned."

Financial analysis:  A Proforma projecting economic impact is not done, Henke said. "That requires hiring someone to come in, look at current zoning and potential zoning and do a best guess analysis on what the difference would be between the two. That would require a contract for somebody to go through that process and we may do that in the future, we have talked about that on a staff level. We haven’t budgeted the money to go through that process yet, but we could if we are directed to go that route."

The city council authorizes how city funds are spent. When the proposed C-4 code goes before they council they will decide if a Proforma is needed. 

Conclusion:  "Basically that's the presentation," Henke said. "Hopefully that clears up some of the misinformation that’s been out there. That doesn’t mean everybody will agree with whats been proposed, but I wanted to make sure the facts are out for everybody to see."

Link to city website for Proposed C-4 Zone code text:http://www.midwaycityut.org/media/uploads/files/Agenda%20Item%20%233%20-%20Code%20Text%20Amendment.pdf

Note: Watch for Part Two: Public Hearing Pros and Cons midweek.