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.