DANIEL TOWN COUNCIL and PLANNING COMMISSION COMBINED
PUBLIC HEARING
Monday, January 2, 2012 at 6:30 PM
Wasatch County Services Building, Room 126
55 South 500 East, Heber City, UT
Town Council quorum present: Mayor Michael Duggin, Council members Eric Bunker, Jon Blotter, and Kasey Bateman were present at 6:35 PM when Mayor Duggin called for a motion to open the public hearing. Council member Chip Turner was excused from the meeting. Recorder Merry Duggin was present to record the minutes.
Planning Commissioners present: Kim Norris, Barry Hobbs, Jaye Binkerd, Gary Weight, Blaine Smith. Commissioner John Glodowski was absent. Planning Secretary Kathy Jo Percy was present.
Members of the public in attendance: Janet Robinson, Justin Robinson, Gary Walton, Lambert Deegan, Ryan Taylor, Lorie Hobbs, Mike Ashby, Teri Welch, Paul and Gina Stewart, Blaine and Juanita Webb, Rex D. Cummings, Jeff Heftel, Jeremy Heftel, Larry S. Ward, Bob Davis, Carol Bates, Tom Rawlings.
9)PUBLIC HEARING CONCERNING A POSSIBLE ZONE CHANGE FROM P160 TO RA-5 FOR 3 LOTS IN THE BIG HOLLOW SUBDIVISION AND POSSIBLE ADDITION OF “ALTERNATIVE HIGH SCHOOL” AS A CONDITIONAL USE IN THE P160 ZONE.
The public hearing was scheduled as item 9 on the Daniel Town Council meeting agenda that began at 5:30 PM on this same evening. Mayor Duggin announced that Daniels Academy has requested that its business license be expanded to allow an increase from 8 to 16 students. Mayor Duggin expressed his belief that this should be allowed, and he stated that he has always been in favor of the school and what occurs there. Daniels Academy’s license is for a residence for persons with disabilities, and he was not clear about how to proceed. This public hearing was scheduled to hear comment concerning the possibility of considering Daniels Academy’s request for a new conditional use in the P160 zone to allow an “alternative high school”, or to perhaps change the zoning of this property from P160 to RA-5 which is a zone that already allows a “secondary school” as a conditional use. He asked for a motion to open the public hearing at 6:35 PM.
Council member Bunker moved to open the public hearing. The motion seconded by Council member Bateman passed with a unanimous vote of the Town Council. After welcoming the presence of the Planning Commissioners, Mayor Duggin invited public comment.
As a member of the Planning Commission, Commissioner Gary Weight stated that he was present to listen to comment at a public hearing before deciding anything regarding Daniels Academy. He also pointed out that regardless of any comments made by the mayor; no decision had been made to approve anything.
Lorie Hobbs, 3615 South Field Rd., expressed her opinion that the lots (in Big Hollow Subdivision) should never have been approved, but she did not feel the zoning should now be changed to RA-5. She also did not feel that a conditional use for an alternative high school would fit this situation because it is actually a boarding school. She also felt that a boarding school should not be allowed under Daniel Code in a residential area of homes. According to Ms. Hobbs, Federal law requires the Town to allow disability residences, but the Utah State law allows conditions to be placed on them. Location can be determined so the residences won’t all be clustered in one area. A maximum number of residents can also be determined (8 in our town). She went on to describe that this number was determined after much discussion and consideration of a survey of the town’s residents showing that the average home had 3 residents. She felt that more than 8 residents would change the nature of the home. She discussed some court cases in which communities have lost and been fined, but in her opinion Daniel Town has not violated Federal or State law. She said that the home must be financially feasible, and if we are too restrictive, the Town might be in violation of these laws. She suggested that Daniels Academy should apply for a variance to the number 8, and in the application the Academy would have to show that this accommodation is absolutely necessary for it to make enough money to succeed. She encouraged the Town Council and Planning Commission to base all of its decision on the General plan which cites our rural atmosphere, natural resources, protection for current and future residents among other things, and she felt that the Council MUST follow these guidelines. She felt that if this Academy is allowed to be a school, the Town would lose control over how many buildings would be built on this property.
Mr. Paul Stewart, who owns the property adjacent to Daniels Academy on the north side, did not feel that this group has done a service to our community, and since the number of students increased without permission, Mr. Stewart does not believe that the Council should trust what school personnel says.
Teri Welch, 487 Cobble Creek Lane, objected to the mayor having already apparently made the decision to “accommodate” this group. She wondered why the Town has to address a way to make this business viable. She felt that the Council and Planning Commission must take into consideration the General Plan before trying to accommodate “someone trying to go around regulations”.
Mr. Justin Robinson introduced himself as the director but not the owner of the property of Daniels Academy. Since he became involved in this Academy he has narrowed the population to Asperger and autistic spectrum disorders. He said that the State of Utah has licensed the school for 18, but he is hoping that some agreement can be made to allow 16 students so that he can provide the quality service for these young men. This cannot be done with only 8 students due to the high cost of his payroll. He needs 16 students to make the school economically viable. He said that he is not speaking for the owner, but there are no plans for other buildings on this property while he is the director. If he walks away, the owner will use the property for some other type of disability group home.
Mr. Mike Ashby stated that Mr. Robinson did not do his due diligence in getting all the information from the owner that he should have in order to succeed.
Commissioner Gary Weight reminded everyone that Daniels Academy is operating under the same license and has the same owner as originally licensed.
Tom Rawlings asked questions about a state business license and what would be required for that.
Council member Blotter asked those present to focus not on what has already happened in the past but to look at what we should do going forward.
Ms. Carol Bates commented that she respected Mr. Robinson’s concern and compassion, but she was confused when she asked about substance abuse problems.
Commissioner Barry Hobbs stated that a new director or owner could always change the direction of the school or program there.
Jeff Heftel sees “miscommunication” as the biggest problem. Apparently the communication between the owner and director has been “bad”, and the owner was not even present to share information at this public hearing.
Mr. Gary Walton agreed that the owner should be present to speak for Daniels Academy.
Commissioner Gary Weight stated that the Planning Commission has not seen an application from the Robinsons to know exactly what they were asking for. Mayor Duggin responded that the Town has a letter formally requesting an increase in students from 8 to 16 and a conditional use for “alternative high school”. Mr. Weight then replied that the process requires an application, and a request for a boarding school would bring more conditions.
Commissioner Hobbs stated that P160 zoning is appropriate for these properties, and changing the zoning didn’t make sense to him.
Commissioner Jaye Binkerd stated that a zone change request should come from the owner of the property, and a zone change should be the last thing the Town does.
Mayor Duggin indicated that he believed that the Daniels Academy letter had requested a reasonable accommodation under the ADA (Americans with Disabilities Act) and FHA (Fair Housing Act).
Ms. Lorie Hobbs agreed that the Town would have to “accommodate”, but she doesn’t agree that the Town should change its Code to do so. She believes that the way to accommodate is to have Daniels Academy request a variance.
Mayor Duggin expressed his opinion that these laws have been written to protect the disabled and not the neighbors of these residences, and the case law reflects this.
Ms. Hobbs disagreed, saying that she believes that the law protects single family zoning and neighborhoods. She also stated that Daniels Academy must prove that it needs more students to make it economically feasible.
Mr. Jeremy Heftel, a student in School and Family Life at BYU, spoke in agreement with the variance process which he believed should be solved internally and not require rezoning issues.
Commissioner Weight asked again about an application and “following the process” so that the Town can address what Daniels Academy really needs and why they are asking for it. If the Town accommodates their request for 16, this will open the door for everyone else.
Ms. Kathy Jo Percy agreed that Daniels Academy should apply for a variance.
Ms. Janet Robinson, of Daniels Academy, felt that they had already made two requests, and now they are being asked to apply for a variance, and then something else. She is confused about the “process”.
Council member Bunker felt that if the Robinsons have asked for a reasonable accommodation rather than a variance, then the Town might already be in violation.
Mayor Duggin invited Ms. Lorie Hobbs to write a legal opinion on this issue under her law license number if she so completely disagrees with his analysis of the situation, and he would consider her analysis.
Commissioner Jaye Binkerd requested clarification between a variance and accommodation. Mayor Duggin and Council member Bunker then discussed the 5 conditions that all must be met to grant a variance and described the process as “a difficult bar to clear”.
Commissioner Barry Hobbs took the podium. He confronted Mayor Duggin and asked him to present himself as unbiased in this issue. He felt the mayor and prior Council members had given out lots of information to Daniels Academy outside of communication in public meetings. He went on to say that the Town tried to educate itself on ADA (Americans with Disabilities Act), and the owner of Daniels Academy had agreed to a limit of 8. As a resident, he felt that the activity at the residence has “picked up”. He stated that he would not put a school in this location, and the number of residents allowed should be addressed as a variance. He felt that there is an embedded conflict of interest—they are a business, “we” are residents. The owner paid more than the property is worth, and in his opinion it is not the Town’s responsibility to find a way to make the business financially viable.
Lambert Deegan spoke in favor of the school as producing better citizens and shared a personal story about living near a similar school. He thinks it is “great”.
Mr. Paul Stewart asked what the end of “accommodation” is.
Mayor Duggin replied that in his opinion there is no limit except for facility space.
Ms. Lorie Hobbs accused the mayor of using fear to make people agree with him and completely disagrees with Mayor Duggin’s interpretation of the case law.
Bob Davis asked what would stop some facility from doing the same thing on the other 2 lots in the subdivision.
Mr. Gary Walton wondered why we couldn’t “go back and amend the number” by following the process for accommodation.
Ms. Lorie Hobbs trusts the Board of Adjustments to make a determination of the need for a variance under the evidentiary process. She does not believe that an alternative high school should come in under the disability act. In her opinion, a school is much different than a residence, and it is much safer to keep Daniels Academy as a residence rather than a school.
Ms. Janet Robinson stated that Daniels Academy is already an accredited high school.
Commissioner Blaine Smith said that he would like to have the owner present.
Council member Blotter moved to close the public hearing. Council member Bateman seconded the motion, and the vote was unanimous. Mayor Duggin closed the public hearing at 8:50 PM.
Mayor Duggin turned control of the meeting over to Council member Bunker, Chair of the Planning Commission. Mr. Bunker asked for guidance from the Council on how to proceed. Council member Blotter asked about the variance process. Council member Bunker replied that he wasn’t sure if Daniels Academy should request a variance or accommodation. Mr. Robinson stated that he needs 16 students. Mayor Duggin believes that this is a request for reasonable accommodation. Council member Blotter felt he needed more information and requested financial information be presented. Justin and Janet Robinson at this point stated that they would like to consult the property owner for directions and seek legal counsel.
Planning Commissioner Gary Weight moved to cancel the second public hearings for zone change and P160 conditional use change and to pursue other options for the school. He moved to ask the applicants to reapply for a reasonable accommodation and to include reasons why this is necessary and to direct this application to Planning Director Eric Bunker. The motion passed with the following roll call vote: Binkerd, aye; Hobbs, aye; Smith, aye; Weight, aye; Norris, nay.
Mr. Bunker returned the chair of the meeting to Mayor Duggin.
Merry Duggin,
Recorder