In a recent Moab Sun News article about the proposed B&B at 100 Arches Drive, the plaintiffs’ attorney “repeatedly made the case that a majority of council members erred when they voted to deny the (conditional use) application because they were reacting to public clamor against the application” (“Judge overturns city’s B & B decision,” Jan. 26 – Feb. 4, 2016 Moab Sun News).
The judge “found that the council failed to show that the B&B would have an undue increase on traffic or other negative impacts on the quiet neighborhood, and instead responded to ‘public clamor’ against the proposal.”
The difference between public clamor and public comment is defined by the Utah Department of Commerce Office of Property Rights Ombudsman (http://propertyrights.utah.gov/conditional-uses/). Public clamor is “emotional or baseless opinion on a matter.” Public comment is “factual information presented by the public.”
So let’s look at the facts.
A local government has authority to designate uses as conditional, but that designation must also refer to performance standards that guide decisions on what conditions may be applied.
MMC 17.09.531 Conditions for approval of specific conditional uses. (9) Bed and Breakfast B. Requirements
1. The bed and breakfast facility shall not unduly increase local traffic in the immediate neighborhood. Road design and access shall be considered in the planning commission’s recommendation.
The local government also establishes the method to consider applications for a conditional use permit.
MMC 17.09.530 Conditional use permits. H. Conditions of Approval.
9. After considering the public comment relating the criteria listed above in relation to the requested conditional use permit, the planning commission shall adopt a resolution stating their findings of the applicant’s demonstrated ability to meet the criteria for a conditional use permit.
Public comment gathered between Sept. 11, 2014, and Nov. 25, 2014, drew attention to the condition of the road design and access leading up to 100 Arches Drive, including: narrow neighborhood streets lacking sidewalks, poorly designed intersections marked with confusing signage, poor line of sight at intersections, and the road ascending a hill with limited line of sight before descending into a cul-de-sac. Traffic concerns based on road design and access were noted, as well as concerns for congestion, pedestrian safety and emergency vehicle access.
The Moab City Planning Commission, in its findings presented to the city council on Nov. 25, 2014, ignored both public comment and the requirement to consider road design and access in its recommendation for a conditional use permit. Had the planning commissioners considered the factual information presented to them by public comment, it would have become clear that requiring the applicant to mitigate poor road design and poor access would not have been reasonable per Utah Code 10-9a-507 (2) (b), which states: If the reasonably anticipated detrimental effects of a proposed conditional use cannot be substantially mitigated by the proposal or the imposition of reasonable conditions to achieve compliance with applicable standards, the conditional use may be denied.
