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Property rights ombudsman says Cedar Hills officials acted improperly February 18, 2018, 2:05 pmIt all stems from an April 20, 2013, application from Cedar Hills Farm Land for a conditional use permit to develop what was initially supposed to be a five-story senior living facility, Rosegate at Cedar Hills, at about 4600 West Cedar Hills Drive. As the application wound its way through the approval process, the developer began calling the facility a "congregate care facility" to address how the facility would operate after it opened." On December 2, 2014, after meeting with the planning commission, the council voted 3-2 to categorize the proposed congregate care use as similar in nature to an assisted living facility. On August 18, 2015, the Planning Commission recommended approval of the proposed project. The city council subsequently considered the planning commission's recommendation but after hearing from a number of residents opposed to the project, continued the item to a later date. On November 17, 2015, the city council approved the site plan but subject to a set of 14 conditions which the developer called "absurd, illegal, punitive, facially insupportable." CHFL appealed the decision to the Board of Adjustments, saying the conditions made it impossible for the project to go forward and that imposing the conditions was effectively denying the conditional use permits. CHFL and the city agreed to seek an advisory opinion from the Ombudsman's office before proceeding with the appeal process. In its opinion, Jordan Cullimore an attorney with the ombudsman's offices, stated: "Some of the elected officials appear to believe that the City's authority to categorize land uses and regulate their location within the jurisdiction also grants authority to tailor the use's business plan to comport with the council's vision and perception of how the use should operate once established. "Moreover, some of the council members apparently concluded that they could reserve ultimate judgment on use categorization until final approval to ensure they could impose conditions on the care facility's business model and day-to-day operations, if necessary… This is an improper use of conditions in the conditional use context," he wrote. Cullimore examined each of 10 conditions (the city subsequently withdrew four conditions before proceeding with the opinion) and their legality. In regards to the majority of them, the opinion states that there's no basis for them in the law, that they appear to be included to address the preferences and concerns of council members rather than not any detrimental effect of the development, and that therefore it is unlawful to impose them on the developer. Those conditions including limiting the size of the development to no more than 165 units (the site plan proposed 291 units), restricting the age of residents ( to restrict the number of cars), requiring a phased development as outlined by the city and that the development's landscaping be park-like with pedestrian linkages. Of the phased development requirement, it said this condition "… attempts to dictate what the developer's project must include. It also attempts to dictate timing and sequencing of the development, arguably in a manner unsubstantiated by market forces." "Use categories do not exist to enable the local government to micromanage the use and determine its business model. Such a practice exceeds the realm of land use regulation," it went on to say. Another condition was that the developer provides on-site services like a restaurant so the residents of the development could "age in place." "The condition … does not address land use impacts or attempt to mitigate detrimental effects in accordance with applicable standards designed to address land use impacts," and appeared to be instead addressing some concerns council members had, it said. "This is an inappropriate use of conditions in the conditional use context." The opinion upheld a minor condition that no outdoor overnight parking be allowed next to single-family homes and another condition that called for low elevation lighting adjacent to residential uses as appropriate. Although city officials agreed to wait for the advisory opinion before proceeding on the appeal, an advisory opinion by the Ombudsman's office is not binding on any party to a dispute in land use law. The full text of the opinion can be found on the city's website. The community news source for Eagle Mountain Utah, Saratoga Springs Utah, Lehi Utah, American Fork Utah, Highland Utah, Alpine Utah, and The Cedar Valley, including Cedar Fort Utah and Fairfield Utah. Copyright 2024 The Crossroads Journal LLC. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
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