The Grand County Commission declined to issue a permit for a wastewater treatment plant and water storage facility intended to serve a planned development outside of Moab on Kane Springs Road at its meeting on May 7. The utility project is a major part of a controversial planned mixed-use development on a parcel surrounded by public lands along the mostly undeveloped road. Commissioners Bill Winfield and Mike McCurdy opposed the vote.
A staff report submitted by Grand County Planning Director Elissa Martin and County Engineer Dan Stenta before the meeting reviewed the application for a conditional-use permit and produced numerous findings.
While the planned facilities met some conditions, the conclusions hinged on whether the proposal would conform to the Grand County General Plan, which guides development in the county. Utah State Code states that no public utility may be built if it doesn’t fall under a current accepted general plan.
The staff report cited the 2030 Grand County General Plan as crucial to the utility permit. The plan, produced in 2022, specifies that the major “urban service area” in the county is located “primarily south of the City of Moab.”
The rural area surrounding the Kane Creek property “has not been identified as an emerging residential/commercial node,” the report noted, making it inappropriate for a major utility.
“A major utility three miles from existing neighborhoods and job centers does not encourage orderly development of property,” the report concludes.
Bruce Baird, attorney for the Kane Springs Improvement District, attended the meeting.
“I respectfully disagree with the staff report,” Baird said. “General plans are always vague and ambiguous, mostly…Under state law, if there is any ambiguity or inconsistency those inconsistencies have to be construed in favor of the private property rights of the applicant.”
“This isn’t visionary, loosey-goosey language,” said Commissioner Kevin Walker. Walker pointed out that the section governing building utilities is not ambiguous and specifically says they should not be extended outside designated areas without planning.
“It is very clear, unusually clear for the general plan,” Walker said.
The property was rezoned from undeveloped General Grazing to Highway Commercial in 1992, when the previous owners of the land intended to build an overnight camping area. However, that zoning also permits commercial uses and the construction of residences. However, before a development is built, the land must have extensive improvements, including regrading the area of the property near the Colorado River to be 12 inches above base flood elevation and building the water and septic system.
An organized group of residents have been outspoken in opposition to the development [See “An Education in Organizing” in this edition. -ed.], but county staff and commissioners have said that little could be done about the zoning issue.
Baird questioned whether some of the staff findings were a “back-door attempt to down-zone the property by other means.”
“That’s not acceptable,” said Baird. The issues were not raised before, he asserted, making the action appear “targeted.”
Commissioners Winfield and McCurdy supported approving the permit.
“We already have a poor track record on conditional use permits,” said Winfield, who said that he was concerned about the costs of litigation. Winfield indicated that he believed the county was risking a lawsuit it would have little chance of winning, citing previous meetings where staff had said that there was little action that could be taken to prevent the development.
“While the Kane Creek project is extremely controversial and many are opposed to it, I am unwilling to vote against our professional staff and county attorney,” Winfield said.
“Elected officials should never be handling an administrative appeal like this,” Baird said. “You are sympathetic to your constituents…All of your constituents that vote for you have shown up and said they hate this project and you need to vote against it.”
“That’s not your job, to listen to what they don’t like,” he said. “Your job is to narrowly evaluate this project…and not kowtow to public clamor.”
The remaining commissioners judged the issue of the General Plan to be significant enough to deny the conditional use permit.
“It does not conform with our general plan. It’s very clear in our general plan that utilities should not be in this area…unless it was planned, and we haven’t done strategic planning for areas outside the urban area,” said Commissioner Mary McGann.
Baird said the developers were prepared to appeal the decision and move the issue to the courts.
