After more than a year of legal back-and-forth, a district court judge this week struck down the Moab City Council’s November 2014 decision that rejected a couple’s application to operate a bed-and-breakfast facility on Arches Drive.
Seventh District Judge Lyle R. Anderson directed an attorney for Jeramey and Mary McElhaney to prepare a proposed court order that requires the city to issue a Conditional Use Permit for the business “without further delay.”
Moab City Attorney Chris McAnany could not be reached for comment. But Moab Mayor Dave Sakrison said that the city attorney hasn’t had a chance to fully brief council members at this time.
“The council’s been informed, but that’s it,” he said.
Sakrison anticipates that McAnany will go over the city’s options moving forward, once the council convenes early next month.
“There hasn’t been any discussion, but there will be – that’s for sure,” he said.
The former city council voted 3-1 in November 2014 to reject the couple’s application to run a five-unit B&B at 100 Arches Drive, after numerous residents in the neighborhood raised concerns about potential impacts from increased traffic and noise. Former council member Gregg Stucki voted against the majority, and Doug McElhaney – Jeramey McElhaney’s father – abstained.
In making its decision, the council went against an earlier Moab City Planning Commission recommendation to approve the permit. That recommendation was subject to annual reviews and other conditions, including the stipulation that the McElhaneys must discontinue operations at their existing day-care center.
At the time, former Moab City Council member Kirstin Peterson suggested that the council needed to look at the merits of each individual conditional use, and then decide whether or not it’s the right fit. In the McElhaneys’ case, Peterson said that the city’s general plan is aimed partly at restricting commercial development in the city’s residential zones.
However, 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.
“At present, the record presented by the City persuades the court that denial of the Conditional Use Permit was not based on substantial evidence, but on the understandable desire of city councilors to please the public, or a portion of the public, to which they will ultimately answer at election time,” Anderson wrote. “However, if the city council elects to give itself quasi-judicial powers in interpreting and applying the law, it must exercise those powers without regard to public pressure.”
Jeramey McElhaney said in a brief statement that he and his wife are pleased with the court’s decision.
“Now, hopefully we can put this behind us and move on with our lives,” he said.
Plaintiffs’ attorney Craig C. Halls said it will be up to the city council to determine where it wants to go now, but as far as he’s concerned, the judge’s ruling settles the matter once and for all.
“That’s the only thing we’re shooting for,” Halls said. “There’s no place to go from here.”
Moab resident Kris Hurlburt said she’s disappointed in the outcome.
“I feel that the process from the beginning has been flawed,” she said.
However, she praised the planning commission’s subsequent work to revise the city’s requirements governing overnight rentals in residential neighborhoods.
“They said that bed-and-breakfasts should not be on a cul-de-sac (or) dead-end roads where there’s only one way to access them,” Hurlburt said.
In the future, she thinks those requirements could prevent similar kinds of proposals from gaining traction.
“I think some thought went into them, and a lot of what’s wrong with this (application) is covered by their recommendations,” Hurlburt said.
As things stand, Halls noted that B&Bs are an allowed use within the city’s R-2 residential zone. He emphasized that his clients went through the city code to determine what was required of them, and then complied with all of those requirements.
During the course of the appeal, Halls repeatedly made the case that a majority of council members erred when they voted to deny the application, because they were reacting to public clamor against the application.
“I was advocating that the decision of the city council was not correct, since they didn’t make it for the appropriate reasons,” he said.
Anderson agreed, and appeared to use council member Kyle Bailey’s November 2014 comments against the council.
Bailey was the chairman of the planning commission at the time it came up with language that allowed opportunities for B&Bs in the city’s R-2 zoning district. However, Bailey said that board clearly intended to listen to the people of the neighborhoods, and to represent their interests.
“That’s why we had (language regarding) ‘clearly minimal negative impact’ on adjacent residential areas,” he said. “I think we’ve seen that this is going to be an impact on the neighborhoods, and I can’t support this.”
In his ruling, the judge wrote that he respects Bailey’s “candor” in acknowledging that the code’s language was designed for the specific purpose of giving neighbors a “de facto veto” over proposed conditional uses.
“… (If) Councilor Bailey is correct that ‘clearly minimal negative impact’ was merely cover language for the true meaning of ‘not desired by neighbors,’ then there is serious questions [sic] about whether the language can constitutionally be applied to anyone,” he wrote.
It’s unlikely, he found, that the McElhaneys’ B&B will draw rough-and-tumble crowds to the quiet cul-de-sac at the end of Arches Drive.
“If they value peace and quiet, they will have incentive to moderate the conduct of their guests,” he wrote. “If it turns out that this bed and breakfast, unlike others in Moab, ends up attracting guests with massive trucks, Jeeps, four-wheelers, or motorcycles, who torment the residents of Arches Drive by motoring up and down the road at inappropriate times, they can be cited by the City for violating the law.”
Should the situation reach those extremes, he wrote, the McElhaneys will be as sleepless as their neighbors, and the city will have “abundant grounds” to deny their permit when it comes up for its annual renewal.
“However, no reasonable person with an independent view can perceive this expectation as anything more than rank speculation,” the judge wrote.
Hurlburt said she believes the neighborhood has already changed dramatically since the McElhaneys first submitted their application. Time heals, she said, but only with more dialogue between people.
“I do wish the McElhaneys well, and I do hope they can do whatever it takes to reduce the tension in the community that started with (their application),” she said.
Council to mull options at next meeting
… Hopefully, we can put this behind us and move on with our lives.
