Moab City Council member Kalen Jones gestured toward the viewshed beyond the proposed Lionsback Resort on Sand Flats Road. Jones said he believes an agreement with the project's partners to resolve a dispute over amendments to the resort is reasonable and equitable. [Photo by Rudy Herndon / Moab Sun News]

After years of delays, the developers of the previously approved Lionsback Resort have the City of Moab’s official blessings to move forward with the project.

Moab City Council members voted 3-2 on Tuesday, Feb. 28, to approve a zoning status agreement with project developer LB Moab Land Co. LLC and Utah’s School and Institutional Trust Lands Administration (SITLA). Kyle Bailey and Rani Derasary voted against Kalen Jones’ motion.

For the project’s partners, their initial victory appeared to be short-lived: Within a matter of seconds after council member and Mayor Pro Tem Tawny Knuteson-Boyd tallied the ayes and nos, council member Heila Ershadi asked if she could change her vote, throwing the status of the agreement into question.

Interim Moab City Manager David Everitt said that the developer and SITLA officials expressed concerns about that uncertain status in the hours that followed. Ershadi, in turn, said that although she still has many concerns about the project, she will stand by her original vote in support of the agreement.

“I ultimately just decided to stick with the line of reasoning I had carefully considered,” she told the Moab Sun News on Wednesday, March 1.

Still, like Bailey and Derasary, Ershadi voiced misgivings about the project immediately after her vote.

“This is one of those votes that is so hard, and I think I would feel regret and dismay either way,” she told the council.

Derasary said she’d love to say that the agreement is a win-win for both sides.

“But it seems like lose-lose either way we go,” she said. “And so that leaves each of us individually to try and make a decision about what is best for the community now and in the future.”

The zoning status agreement aims to resolve a dispute over recent amendments to the project, which would be developed in phases on SITLA-owned property off Sand Flats Road.

It now includes more clearly defined plans for a 50-unit, 150-room resort hotel and – at full build-out – 188 residential lots, as well as 18 employee/workforce housing units. Nearly three-quarters of the property, or 128 acres altogether, would be set aside as open space – about four-tenths of an acre less than the amount that was outlined in the original proposal.

The city approved a preliminary agreement for the project more than eight years ago, but opponents challenged a previous council’s 3-2 vote, and the legal dispute that followed took four years to work its way through the court system. The Utah Supreme Court ultimately declined to hear the case, allowing a lower court’s ruling in favor of the city and the developers to stand as is.

But the developers and SITLA officials say the project stalled during former Moab City Manager Rebecca Davidson’s administration. After the city terminated Davidson’s contract, SITLA tried to jump-start the project by invoking an obscure state law that exempts state government agencies from municipal planning and zoning regulations.

McAnany informed the council last year that the agency would agree to city jurisdiction on one condition: It wanted the city to classify changes it’s seeking as “minor” amendments, subject only to staff-level review, and not a more comprehensive public review.

The city attorney maintained that the amendments are a major change because, under his interpretation of the plan, the size of the hotel has tripled, from a 50-room casita-style hotel, to a 150-room hotel.

City gains concessions through agreement

Ershadi questioned what would happen if the council didn’t approve the agreement, and while Everitt noted that the future is hard to predict, he said that SITLA has the power to withdraw completely from the city’s land-use approval process.

“It has the ability to most likely develop its own water sources up there,” Everitt said. “It’s certainly conceivable that they could develop their own independent, totally self-contained sewage treatment facility, and the city would have no say in what would happen with stormwater runoff…”

McAnany said the agreement that council members ultimately approved incorporates many of their past suggestions. Among other things, it includes Jones’ request for written assurances that the project’s backers will indemnify the city against any future lawsuits that project opponents might file.

“It is necessarily a compromise,” McAnany said. “The city is not getting everything it wants, and the developer is not getting everything it wants.”

Jones said he believes the agreement is a reasonable one, based on his review of related documents, and the comments he’s heard from legal counsel on both sides.

He noted that a previous council had already approved the project, and said there was a reasonable level of ambiguity for the applicant to question the distinction between a major and a minor amendment.

“It seems like an equitable resolution of that disagreement,” Jones said.

Invent Development Partners co-founder and project developer Mike Badger declined to comment on the council’s vote. But SITLA Associate Director John Andrews noted that the revised zoning status agreement includes a number of concessions that city officials sought, while resolving the disagreement over the definition of major and minor project amendments.

Among other things, it commits the developers to a future traffic study at the end of the project’s first phase, as well as landscaping and drainage improvements that city officials were seeking.

“Those are part and parcel of this, but we’re just trying to get procedurally beyond the dispute that we have … without the five years of process that the prior approvals received, including the years and years in court,” Andrews told the council. “We wish to avoid that. I may be a lawyer, but avoiding litigation is something that we’d really, really like to do, and so we’re trying to be as responsive to all of the technical requirements of the city, but getting us past the dispute that we have found ourselves in.”

Under the agreement, the developer will significantly widen Sand Flats Road, remove sight-line obstructions along the route and add a nonmotorized travel lane for mountain bikers and others along portions of the road. It will also connect its sewer lines to the city’s future wastewater treatment plant, instead of building and operating a privately run system.

In doing so, Andrews said, the project could eliminate a potential source of groundwater contamination: An existing home on Sand Flats Road is hooked up to a septic tank, and by connecting that property to Lionsback’s sewage system, he said the project could benefit the community.

Living Rivers Conservation Director John Weisheit said he believes that the council’s vote to approve the agreement was a mistake, adding that the city has lost its bargaining chip.

“In my opinion, they have a right to tell SITLA that, for example, ‘You can only have this much water and we’re only going to take this much sewage,’” he said.

Local residents still have an opportunity, he said, to step up and discuss ways to address the long-term sustainability of the valley’s water and sewer problems.

“The planning and zoning in the city and county is a mess, and the imperative thing this communty has to do is get its planning documents in order,” he said.

Bailey, who voted against the previous council’s motion in support of the original plan, said he’s willing to go along with whatever the council wants to do at this point.

“We’re in a no-win situation here,” he said. “If we don’t vote for it, they’re going to invoke their state’s rights.”

Having said that, Bailey said he thinks the developers have done “a lot” to mitigate a number of concerns that came up in recent weeks and months.

Derasary said that she thinks there are many good things in the agreement, and she appreciates that people spent so much time working on it. But a big part of the council’s job is to support the city’s code, she said, and she believes that the amendments the developer is seeking amount to a major change, as defined by the city.

“I realize there may be a big price we pay, but that’s why I can’t support the agreement,” she said.

Ershadi said she feels much the same way that Derasary does.

“After a lot of consideration, though, I am coming down on the other side simply because I feel it’s the pragmatic choice, given the options that we’re dealing with,” she said.

If the council chose not to sign the agreement, she said, SITLA can walk away from the city and not have to deal with the council at all, if it wanted to.

“And I would rather have a working relationship and come to points of compromise, and it’s my hope that we’ll be able to do this in the best way possible,” she said.

Despite initial misgivings, Ershadi stands by original vote in support of deal