TREMONTON CITY CORPORATION
PLANNING COMMISSION
OCTOBER 10, 2017
Members Present:
Robert Anderson, Chairman
Val Bennett, Commission Member—Excused
Micah Capener, Commission Member
Arnold Eberhard, Commission Member
Troy Forrest, Commission Member
Ben Greener, Commission Member
Tom Stokes, Commission Member
Bret Rohde, City Councilmember
Steve Bench, Zoning Administrator
Cynthia Nelson, Deputy Recorder
Chairman Robert Anderson called the Planning Commission Meeting to order at 5:29 p.m. The meeting was held October 10, 2017 in the City Council Meeting Room at 102 South Tremont Street, Tremonton, Utah. Chairman Robert Anderson, Commission Members Capener, Eberhard, Forrest (arrived at 5:36 p.m.), Greener, Stokes (arrived at 5:31 p.m.), City Councilmember Bret Rohde, Zoning Administrator Steve Bench, Public Works Director Paul Fulgham, City Manager Shawn Warnke, Attorney Dustin Ericson and Deputy Recorder Cynthia Nelson were in attendance. Commission Member Bennett was excused.
1. Approval of agenda:
Motion by Commission Member Eberhard to approve the October 10, 2017 agenda. Motion seconded by Commission Member Greener. Vote: Chairman Anderson – aye, Commission Member Capener – aye, Commission Member Eberhard – aye, Commission Member Greener – aye, Commission Member Stokes – aye. Motion approved.
2. Approval of minutes—September 26, 2017
Chairman Anderson said on the third page, third paragraph down the word unclean needed to be changed to unclear. The minutes were approved with this change.
Motion by Commission Member Eberhard to approve the September 26, 2017 minutes. Motion seconded by Commission Member Stokes. Vote: Chairman Anderson – aye, Commission Member Capener – aye, Commission Member Eberhard – aye, Commission Member Forrest – aye, Commission Member Greener – aye, Commission Member Stokes – aye. Motion approved.
3. New Business:
The following items were discussed together
a. Discussion and consideration of amending Title II Subdivision Ordinance adding Development Requirements for Secondary Water Systems as an improvement within new developments, and amending Title II Subdivision Ordinance, and Section 2.06.080 Deep Lot or Flag Lot Development requirements.
b. Discussion and consideration of amending Title I Zoning Ordinance Chapter 1.26 Site Plan Permit amending Section 1.26.040 Approval Standards and adding Secondary Water Improvements.
Administrator Bench said part of item a. had been struck out (section 2.06.020 Sanitary Sewer Systems). He reminded the Commission that when they vote to include a motion on secondary water and the flag lots. He said the big discussion here is secondary water so read item b. also, which Chairman Anderson did.
Commission Member Capener asked how long the secondary water system would last. Director Fulgham said we design for 50 years, but impact fees are designed for six to ten years. When you build a secondary system the infrastructure, except for the pumps and motors, are going to be built for 50 years. Pumps and motor are about five to ten years, but they are a throwaway type item and if you can get a three to four year life cycle out of them they have done their job.
Manager Warnke said Attorney Ericson was invited to answer questions relative to the legal basis for exacting water shares. We had a discussion previously, but not all the commissioners were at the meeting when we went through the state code and showed the statutory authority for the City to propose this ordinance. He explained that Director Fulgham could talk more specifically about the system and reminded the Commission that their role is to be technical advisors to the City Council on the ordinance. Commission Member Anderson said we had a lot of questions last time we met, but we did not have all the answers. I hope we can clear some of that up this evening and pass this onto the City Council with our approval or whatever we decide.
Commission Member Stokes asked if the ordinance has changed or if it is still one water share for one acre. They said yes and Commission Member Stokes replied then I have no clue why we are bringing it up again. Do you think we are going to change our minds? The last time we spoke it was .67 shares per acre. Administrator Bench said that is what the plan is, but we have to have the canal company in accordance. Director Fulgham said the water rights belong to the canal company and the shareholders set the bylaws, which is one share for one acre, whether it is developed or undeveloped, and that is what we have to go by. He spoke to the manager of the canal company, who said that will be required of the City until any further notice.
Commission Member Stokes asked why the required shares is different for commercial than residential, with the ordinance stating the engineer will extract it. Director Fulgham said we will extract that for all water. We feel we can water a lot more efficient with pumps so that is our estimate in the study, but we have to live by the canal company’s rules. No matter what property is developed we have to live by their rules until they allow different. Commission Member Stokes said but commercial is out of sync. Manager Warnke said that draft was written previous and will need to be changed to reflect that. Director Fulgham said according to the canal company standards it would be one share per one acre whether it is developed or raw ground, but we will meet with the canal company and present our case. The manager of the canal company does not feel the canal board will change until we can bring them hard data for probably one or two seasons of water. Individual users will not be metered, but all the sources we pull from to feed those service areas will be. This will provide hard data for how many acres are developed and how much water it takes to irrigate.
Commission Member Stokes said if a company wants to relocate to Tremonton you will require them one share per acre? Manager Warnke said yes or find another way. If the city had excess shares they could contribute to them. Commission Member Stokes asked why would we do that? Manager Warnke said that is a policy decision by the City Council or RDA. Commission Member Stokes said but that is taxpayer money. Manager Warnke said I am not saying it is right or wrong—it is a possibility that could occur and it would be a decision of the RDA Board or City Council. Commission Member Stokes said right now we want to build a secondary water system with 137 shares, You are saying if a new company comes in we would take some of the 137 shares from our secondary water? Manager Warnke said, I said it could be done, but we are a little off track. I am happy to answer questions, but remember your role as the Planning Commission is to review the ordinance and make a recommendation to the City Council and their role is to decide if they want to accept your recommendation.
Commission Member Stokes asked how many acres of developed land Tremonton has right now and wondered if the city would have to buy 4,000 to 5,000 shares in the end. Director Fulgham said in the future it would be, but the engineer’s figures are on reduced shares. Commission Member Capener said it is by the required shares. They figure one share will water 2.66 developed acres. Director Fulgham said at build out, using that formula, the city would need 1,149 shares, but that is using the reduced amount that the canal company does not accept yet. If it is not reduced, at build out we will need that plus 35% more. So another 400 shares for about 1,500 shares at build out, which is 50 years out. Commission Member Forrest said I do not understand your math. If you have one share per acre and 4,000 acres in the city you will need 4,000 shares at build out. Director Fulgham said I am taking it off the study number that says total build out. Like Manager Warnke said this is not your concern. Commission Member Forrest said but the ordinance number is our concern. Director Fulgham said the one for one is not your concern. The canal company says if you use our shares you have one share per one acre developed or undeveloped. Commission Member Forrest said we are trying to reconcile the two numbers. Director Fulgham said the two numbers do not matter because the canal company says that number that the City feels is a good number does not matter to them. So until we prove to them it is a good number, it does not matter. If we are going to use canal shares, we have to have one share for one developed acre.
Manager Warnke said to Chairman Anderson what is in the ordinance is something you can make a recommendation on. We are just trying to report what the canal company is going to require of the City. Where we get those extra shares and totality is beyond the scope of what you need to focus on. Commission Member Forrest said I do not disagree, but I still want to know what it is going to end up being. The ordinance reads one way because that is what the canal company says, but in reality you do not need that much water. I think we are self-assessing attacks on us for way more water than we need through the ordinance. Manager Warnke said you could make that a part of your recommendation or express that as part of whatever you pass onto the City Council. Your recommendation could be you do not approve the ordinance or you could make a recommendation with specific considerations or propose an amendment.
Commission Member Forrest said we have the study and a good idea of how much water is used on the build out portion we have now and you can tell me how many gallons of water are used through your system every month. I think we ought to base the ordinance on what we know is true. That is what we ought to aim to allocate as a City. That is the way I would like to see the ordinance written, that we will only allocate what we need then I would be comfortable with it, but to say we are going to have one share just because the canal company says that—they can change their bylaws and they are not the only game in town. There is other water available to the city. Commission Member Eberhard asked what those other sources are. Commission Member Forrest said the Water Conservancy District could develop a dam that has 50,000 acre fill water to purchase. We have 50,000 acre-feet that the Bear River Water Conservancy District has a right to on the Bear River that has not been dammed and allocated yet. They have talked about a dam that goes in by Portage and gravitates into our system. They have wells in the Bothwell pocket, which have capacity but no transmission capacity. Director Fulgham said they need a $2.5 million line to get it to Tremonton. Commission Member Forrest said we are basing this whole ordinance like the only game in town is the Bear River Canal Company. Director Fulgham said in my mind that is our most inexpensive game in town. Commission Member Forrest said right now, but they could always change the game. They are a private company that is for profit so they can absolutely change the rules.
Manager Warnke said this is a little beyond the scope of what the Planning Commission’s role is in the process. Your opinions certainly matter. You could come to the City Council and express your opinion, but that is best done as a member of the public rather than as a Planning Commissioner. Commission Member Forrest said I tried that and I feel like I have a much better venue here. Manager Warnke said all I am suggesting is your role is not necessary to evaluate all the different options to meet our water needs. Commission Member Forrest asked why we are writing the ordinance based on one company when there are other options on the table.
Commission Member Capener asked if they met with the canal board. Director Fulgham said he has a meeting scheduled, but met with the manager, who speaks for the board. Commission Member Capener said I have talked to a lot of farmers and there are no farmers in the area that if you have 80 acres with your house, barn and corrals are required to have those 80 water shares for something they are not using. They give these farmers their time on the ditch and then they are done. Director Fulgham said that is the way it will work until we have all the shares we need and ours will be metered. Commission Member Capener asked why we need to meter it if it is one for one. Director Fulgham said so we can prove to them that we are not using the full share. The canal company is going to say you just took X amount of acres of farm ground out and you need to have enough shares to irrigate it. Until we can prove to them we need less and ask them to reduce the requirement for irrigated property we will be required one for one. Commission Member Capener said how many acres do we water right now and are we reporting that? Director Fulgham said no, but it will be a requirement in the future. I have met with the division of water rights also and they are going to want it. Commission Member Capener said we definitely need one share per one acre of irrigated dirt, but my argument is if you have an 80 acre warehouse and we water an acre of lawn, there is no way the canal company is going to require that 80 shares and from a legal standpoint there is no way we can exact 80 shares when we are only going to use one. This study says based on all of their estimations we are going to use one share for every 2.66 developed acres, which equals an exacting amount of .38 shares per developed acre. Director Fulgham said that is exactly what our study says and that is exactly what I believe, but that is not what the canal company says and the water does not belong to the shareholders. The canal company has the water rights, which are given from the division of water rights, I agree with what you said, but I have to look out for the City’s venture that we do not get caught short handed until they tell us we can be short handed. Commission Member Capener said my argument is we are probably watering 40 acres with 20 shares because we are not watering the whole 40 acres we are only watering pieces of that. Director Fulgham said in the future we will have the data to prove that. Commission Member Capener said I think the conversations had with the canal company so far have maybe been misunderstood. Director Fulgham said we have not approached the whole idea of the warehouse, but we have looked at homes because that is where we are using most of our water. Most of our industries are not using a lot of outdoor watering, but our homes do.
Commission Member Anderson said currently how much water do we use in the City? Director Fulgham said in the summer time we use about 150 to 180 million gallons of water a month, but I could not tell you how many acres we are watering because I do not know every home footprint. We go from 50 million gallons in the winter to 150 million gallons plus in the summer time.
Commission Member Capener said I do not think the canal company can enforce what you are saying on the farmers so I do not think they can enforce it on us. To my knowledge there is no practice and no farmer that is metering anything on a per acre basis, it is per gallon. Director Fulgham said if they have an irrigation pump they are starting the requirement to put meters on those. They want to know if pumping is more efficient than flooding. Commission Member Capener said why would you ever have to meter anything if you are required the one to one? Director Fulgham said because we want that requirement reduced. We have to prove it is less than the required one for one, but the City just does not want to get caught short handed. If you take farmers’ water and more than what you are allocated they are going to be upset and that is why we are trying to make sure we have enough until we can get the approval to reduce. Commission Member Capener said how could we over allocate if we are only watering a half-acre. Director Fulgham said that is based on the average user but there are people who do not care how much they use on their lawn.
Commission Member Stokes said the canal company is still in the 1800s, we still have one share per acre whether it is on the house or not, so we still have the 40 shares for 40 acres. Commission Member Capener said we are saying the same thing it just has to be ratified by the board when you meet with them. Director Fulgham said if we can bring them back data, which will take a couple seasons, they will likely look at saying, yes sprinkling property uses less water so they could reduce the share required per acre for sprinkled property. Commission Member Forrest said they have to make the whole system work and have to be able to deliver their promised amount to every head gate. They have to have enough volume in the canal to service all their customers as if they planted a high water use plant.
Councilmember Rohde said to get the system up and running we need 1,100 shares and by the time we get to 1,100 shares we should be able to go back and say this is the data and we have enough. Could you put into the ordinance something that says we will exact one to one, but after we have collected so much data then we will go back to the canal board and see if we can correct it. Director Fulgham said if we do secondary, I would go in once a year and make a report to the canal company on what we use. I have to submit yearly reports to the Division of Water Rights on our culinary use and they said if you start secondary we would like you to record that data on an annual basis too. We can give that same data to the canal company that says how many irrigated acres we are watering so they know exactly what we are irrigating. We have meters and I read them the first of the year, but no one wanted the data so I have not read them since. This winter we are going to put new meters in and update to a magnetic type of meter that is not as influenced by the wear of the water. Every station will have a meter on it.
Commission Member Capener said when I look it up one canal share is 1.3 million gallons of water, which is four acre-feet, while the study is based on three acre-feet. The canal company does not really care what you do with the water all they care is that if you take 1.3 millions gallons you have to have one share. We just have to have shares to back up however many 1.3 million gallons we take out. Going back and reporting and doing whatever we do with them does not really matter. We get 1.3 million gallons per share. Why do we need to report to them at all? Director Fulgham said because we are going to be asking them to change their mindset on thinking because in the future they are going to need to. This is going to be more and more in our county with more and more pressurized systems. We have to protect the City to make sure we do not over allocate what we have for shares and if you exact one for one we will be plenty good. If something works out in the future, and that is a City Council decision in the ordinance, where the canal company says we agree with your numbers then maybe we can look at buying back those shares from the developer and paying them a lease fee for the ones we used that were not required. Our goal is not to take more than we need. That is why we did the study the way we did. Commission Member Greener said the worst thing that could happen to you is you develop this whole system and not have enough water. Director Fulgham said or we reduce the amount and we find out our people are using more. Commission Member Greener said but you can go conservation rules for that. Director Fulgham said yes and no. When you put people on every other day they water more the day they can.
Commission Member Capener said lets say the study says we need .38 per acre. Can we legally exact one share per acre knowing we do not need that much? Attorney Ericson said yes, if it is required by the canal company. Commission Member Capener said but we have identified that is not required. Attorney Ericson said we have identified it is required, the canal company has told us face to face it is required. Administrator Bench said it is in their bylaws. Commission Member Capener said they require one share per one irrigated acre, but I think there was a miscommunication on the developed part. Say it is a miscommunication. Attorney Ericson said if it was a miscommunication then it is in everybody’s best interest we change that. We have had a direct conversation and what has been expressed from the canal company is that we need one share per acre. That being the case, then the State Code would allow us to exact one share per acre because that is what is required to meet the canal company’s rules. If that is not the case, if the canal company would allow us to go with what the study says that is what we would exact.
Commission Member Forrest said we are using 100 million gallons in the summer, which is 76 shares. The city has 137 so to build the system today you have a 50-share buffer with what you already have on the books. That is legal and even if you had your worse month every month of the summer you would still be covered by that amount of water. Do we really need to exact anything? Director Fulgham said we only have 48 shares that are not being used at this point. The big hunk of those are for the golf course. We are in the process of doing service areas 1 and 2 and some of the homes that are not using much water could start to irrigate their lawn more. Commission Member Forrest said but you have not accounted for all the well water that is already pumped.
Commission Member Stokes said if our recommendation is to send it to the City Council one of the changes I would like to see is the commercial properties—that we exact the same amount on commercial. We might as well get the shares. Commission Member Capener said but it is a take. You have a 20-acre parking lot you are never going to water. Commission Member Stokes said you could use it somewhere else in the City. Commission Member Capener said then it is a take not a required thing. I think they will find out from the canal company that there has been a miscommunication. Based on every farmer and every allocation in my experience from farming years ago I would be surprised if that’s the case. You use 1.3 million gallons per share and where it goes nobody cares, just do not use more than that. I could be proven wrong and if I am that means the way they have allocated the entire area is completely wrong and every farmer is using it incorrectly and I have personally sold properties that are using it incorrectly. Director Fulgham asked Commission Member Capener how he divides his shares up. He said you can divide and sell any amount and the owner is given a certificate issued from the canal company. Director Fulgham said we are under the impression from the canal company that they do not break up the shares like that. Commission Member Capener said they absolutely do, you just pay $100 to get a certificate and break it up however you want. That is why I am saying I am not sure who you are talking to is clearly understanding the question.
Director Fulgham said we are meeting with them at the next board meeting and will lay this all out and see what their answer is. The Commissioners wondered if they should table it until then. Manager Warnke reminded them they could make a recommendation based on what the canal company requires if they like the basic form of the ordinance. Commission Member Capener asked if they have seen the updated ordinance, saying he thought it had changed. Commission Member Stokes said we have seen it a couple of times. Administrator Bench said it is still one to one and that is the same for commercial too until such time. Manager Warnke said or whatever the canal company will require. I think we are all saying the same thing, which is whatever the canal company requires is what the standard will be. We all want it to be as low as possible.
Commission Member Capener said the canal company has nothing to do with it. You get one share per four acre-feet, 1.3 million gallons, there is nothing to ask. Commission Member Forrest said I agree with him, how are they going to measure the acres. Director Fulgham said they are the owners of that water, issued to them from the State and we want to get on their good side. We want to be on the up and up with them so they know what is going on. Attorney Ericson said there is no way as a City we can try and pull a fast one on the canal company and not report to them. Commission Member Forrest said that is not what we are saying. You are going to pull the water and he is going to know exactly what he pulls. We can go to the bank and survive any lawsuit based on what goes through our meters. Commission Member Capener said you mentioned we have not metered it for a couple of years. Director Fulgham said it is metered, but not read. Commission Member Capener said so nobody even knows what we use anyway so it is obviously not that big of a deal. Director Fulgham said but we have not been irrigating that much. In the future we want to document that. Commission Member Capener said it is a different conversation if we are saying we want to have extra water. We want to do a half a share, but the study is saying .38. I do not think the canal company requires a one to one and to have extra water is a different conversation. Commission Member Forrest said I am okay with a one to one if it is on an irrigated acre—that is what the canal charges everybody else and that is how they exact their water. We as a City should be treated the same way. Director Fulgham said everything you see in that study we are going to layout to the canal company. I understand the whole commercial/industrial parking lot footprint because they are not going to irrigate it all, but we still have to bring it to the canal company and ask, in my opinion, for their blessing. Commission Member Forrest said I think so too, but we approach it a bit different we say we want to pay for the acres we are going to irrigate because we are not going to irrigate that building. Director Fulgham said that is what our study shows—the irrigated property in a developed lot.
Commission Member Capener said so you think we need to go to the canal company and say we want to put in this 20-acre parking lot, is it okay that we give the other 20 shares to some other farmer to water or should I just keep it and not use it. They want it to be used on an irrigated acre they do not want 20 shares stuck on a parking lot that can never be used. Director Fulgham said if you are putting it back in the lease pool they do not care because it is going to beneficial use to somebody else. If not you take the risk of losing water. It needs to be put to beneficial use. Commission Member Forrest said if you as the City are holding that 20 acres you are putting them at risk. That is our argument. If you have 4,000 shares of water and you are only using 1,000 the canal company is at risk of losing 3,000 shares because they are not putting them to beneficial use. Director Fulgham said that is why they have the lease pool, which ranges between 400-700 shares. I understand on the development part, that is why we need to ask them so they feel as comfortable as we do.
Commission Member Capener asked to look at the ordinance. Attorney Ericson said the ordinance simply states we do what the canal company tells us. Manager Warnke said that is what is suppose to be reflected in it and there is a little disconnect as Commissioner Stokes pointed out with residential and commercial, but in the end what we would recommend to the City Council and what your recommendation is, is whatever the canal company is going to require us is what the extraction would be.
Director Fulgham said if they come back and say you can calculate it on irrigated acres that helps us and we can evaluate for parking lots and buildings. Commission Member Capener said I do not think we can even talk about this until that is answered. I do not want to approve it without knowing what that is. It is a night and day dramatic difference in usage of shares. Commission Member Eberhard said I think we have to quit kicking the can down the road and bite the bullet and get this going. Commission Member Capener said I want to get going as much as anybody, but the last thing we want to do is push forward something that is not adequately defined. Commission Member Eberhard said it could be changed again—we are changing ordinances all the time. Commission Member Capener said that is the problem. Let us say we have a developer come in and donate 80 shares, one per acre and then next week we change it to .38. Now we have someone who is real upset. Commission Member Eberhard said but if you put in the ordinance that it can be adjusted and that the City will buy it back I do not see a problem with that. Commission Member Forrest said that is not in the ordinance today. Commission Member Capener said that is the whole point and buy it back for what? What if he had to buy it for $20,000 a share and the city wants to buy it back for $2,000.
Attorney Ericson said to Commission Member Capener, so if I understand you, you are saying if the canal company says it is one share per acre, you do not want to pass this ordinance? Commission Member Capener said no the question is, is it one share per irrigated acre or one share for total acre. Attorney Ericson said I am saying if they come back and say it is one share per one acre, whether it is irrigated or not, you do not want to pass the ordinance? Commission Member Capener said I do want to pass it, but I want to visualize how we will get there and make sure it is going to be fair on multiple sides because it makes a dramatic difference whether it is irrigated or not. If it is one share per irrigated acre then that means we exact .38 and everybody is happy, we get it done and then we figure out how to word it. Attorney Ericson said my question is, if they come back and say it is one share per acre, not irrigated, then you are saying we do not pass the ordinance? Because right now the ordinance reads that we are going to do whatever the canal company tells us, whatever they allow that is what we are going to do. So are you suggesting that if the canal company makes it one share per one acre whether that is irrigated or not then we do not pass it? Commission Member Capener said yeah. We have Project Flick, an 80-acre warehouse, and we are going to make them donate 80 shares that have to be used for that property in order to be exacted, right? Otherwise we have to give it back to them in 15 years. Attorney Ericson said that is not correct. We can exact whatever is reasonably proportionate, which would be whatever the canal company requires us. By state law if the canal company requires us to exact more than what our study shows then we can exact what they require us to. We are at the mercy of the canal company. If you are saying if the canal company comes back and tells us that they are requiring one share per one acre, regardless of what we are doing with that acre, you are saying we then do not approve this ordinance and then we do not have the ability to get secondary water, which the long-term effect is we cannot do anymore development because we are out of water. Commission Member Capener said that is why I want to know that. We need to do some recon to see how that is going to be applied. I do not know how they can apply in one instance and not another. I think we analyze this based on the information we find out from the canal company and then we make a decision at that point. What we do not want to do is make an arbitrary random guess. I do not see anyway they can require more shares than is physically being put on the dirt. Attorney Ericson said this is not what this ordinance says. It says we will exact what the canal company requires of us. Commission Member Capener said and that is fine, but what they require is the question. Whatever they require has to be done across the board based on every other development, farmer and scenario. It is a per irrigated acre basis, that is why they meter it. If it was a one to one there would be no metering, you have 50 acres you have to have 50 shares and you cannot move them. Attorney Ericson said which very well may be true, but what I am saying is if the canal company requires the City to have one share per acre then that is what the City has to do.
Commission Member Forrest said they cannot treat us differently than they treat everybody else, we have a legal basis to challenge them on that. Attorney Ericson said this ordinance does not say we attack the canal company if they try to exact too much from the City, it says the City will do whatever the canal company requires us to do. Commission Member Forrest said which I do not agree with. I do not think the canal company should have that kind of power. He said if he was in a city attorney position as soon as they took that tactic he would go to the state engineer and say, they have required us to have 80 acres of water on this warehouse, we think you should take that beneficial use from them and then they have that many less shares in the canal. Attorney Ericson said and I do not disagree that the City may take that position, but that does not change this ordinance at all. Even if the City went and fought the canal company over what they required that does not change this ordinance. It says we do what is required of us by the canal company. If we went to the courts and fought over it and made that number go down that does not change this ordinance. It would still be that we will do whatever the canal company requires of us. Commission Member Capener said this is a railroad to encourage the canal company to force a one to one so the City can exact the one to one and use it across the board and not pay for the additional water they need. Attorney Ericson said nothing in this ordinance says one to one, it says that we do what the Bear River Canal Company will require. Commission Member Capener said I understand that, but that is why I am saying we need to know what the canal company says before we do the ordinance not the other way around. Something just feels funny here. I make a motion to table it until we hear back from the City Council. Attorney Ericson said this is not to table, it is recommending that it be passed like this or that it not be passed like this. The City Council is the legislative body—they are the ones who make the legislation. This Commission is to give them guidance and say we are on board with this or we are not.
Commission Member Green asked if the City Council has considered other ways of acquiring water shares besides extracting them from developers as they develop the ground. Manager Warnke said they have talked about it and it might come up again. Someone is paying for it and it all comes down to an exaction at some point unless you roll it into your fees.
Administrator Bench reminded the board that there are two things they needed to approve—secondary water and flag lots, which needs to be clarified in their motion. Commission Member Capener asked why they are on the same line item and Administrator Bench said because they had the public hearing. They just need to clarify in the motion what they want to do. Commission Member Capener said let us just talk about secondary water at this point.
Commission Member Capener made a motion that we adjust the ordinance to exact .38 per residential developed acre, per the study, and we exact the irrigated acres on a commercial industrial property, regardless of what the canal company says. Commission Member Eberhard said I disagree with that. Commission Member Greener said you will fall short of what you need for the City that way. Commission Member Capener said no the study says that is exactly what we need. Commission Member Greener said but if you only require that on new development you will not have enough water for what is already developed. Commission Member Capener said you cannot exact water from the new, future developers to water the old part of town. Commission Member Stokes asked where that water is going to come from. Director Fulgham said we are going to purchase those shares. Commission Member Capener said this is talking about exacting for future development only, on the new impact for residential, commercial, and industrial to come in and donate water to fulfill their impact on our Dity, not the old part of town. The study is very clear it says .38 minimum is required for a residential developed acre. The commercial I think is all on a case-by-case basis. Manager Warnke said it is .62 shares per irrigated acre. Commission Member Capener said it is very clear and then read part of the study. Director Fulgham explained that the engineer used a duty factor of three and not four. Commission Member Capener said for this report 50% is conservatively used for the conversion of total acres to irrigated acres. The estimated annual use will be three acre-feet instead of four, this means that one share will irrigate 1.33 irrigated acres annually or 2.66 developed acres annually, which equates to .38 shares per develop acre as a minimum. The number of shares required will not be less than this number. I think that is the minimum we require at this stage to start the process and we require the same thing on industrial or commercial. We use the same formula on the industrial and commercial. This is my motion and recommendation for approval at City Council. Commission Member Forrest seconded the motion. Commission Member Eberhard wanted clarification. Commission Member Capener said we take the ordinance that we have and say we are going to exact .38 shares per residential acre and the similar amount for the developed commercial industrial acre with the same formula, regardless of what the canal company says because I do not think it is a question that needs to be brought up.
Commission Member Eberhard said I think all we are doing is setting up friction between the City and the canal company. Commission Member Forrest said the City Council can do whatever they want we are just giving our suggestion. Commission Member Capener said if you develop an acre you have to donate .38 shares regardless of the size of your lot—the study is very clearly on the conservative side and we should not run out of water based on the way they have calculated this. We put about four homes on an acre minus the roads, all the gravel and concrete, and we are not really using 50% on the average home in our area, but they have estimated at 50%. You could adjust it once we have some data. Director Fulgham said how are you going to get the water shares back if you overuse. If the .38 is wrong and they are using .5 then the citizens get held with it, you developers get off scot free, you developers, and that is why I am thinking you are looking at it through the developer’s eyes and not your City representative eyes. What it says is what the canal company requires, we want to reduce it, but we have to live by some of their rules so we do not get caught shorthanded and our citizens have to make up the difference. Commission Member Capener said the rules are the same rules we have to apply everywhere. Director Fulgham said I cannot go to the canal company and argue that they are not making everybody play by the rules—I do not know the truth to that. I can go in and say this is what our study shows and this is what we would like, can we proceed with that or are they going to want some hard data to prove it. Commission Member Capener said that is what I do not understand. Why do we need to ask them anything? Director Fulgham said I have to get their permission to put those pump stations in there and they will want to know how much we are going to irrigate out of those pump stations. That pump station is made to deliver X amount of water and if I am going to overdraw what I have they are going to want to know where you are getting that water and where is it going. The previous motion failed.
Commission Member Forrest said I would even amend his motion and the one I seconded to say that we exact whatever the canal company requires per irrigated acre. Director Fulgham said I hope when I go and present that they understand that is what we are asking for, the irrigated portion of that lot. Commission Member Capener said the canal company has nothing to do with it, the City just wants extra water. Director Fulgham said they do have something to do with it. They own the canal and the water and they have to give me permission. I cannot just go tap into it and pull water out. Commission Member Capener said but this has nothing to do with that, all this says is for future development we are going to make that developer, regardless of where you pull it from, how you implement, or what zones you pump or from where, make that developer, no matter where he is in the city, donate X per acre. It has nothing to do with anything else. Commission Member Forrest said and that is why I want to change it to X per irrigated acre. Commission Member Stokes said the problem I have with irrigated acre is some acres are not irrigate correctly right now. Commission Member Forrest said anything we spray water on to make something grow becomes irrigated. We develop the ratio on what we know and it is just irrigated acre per irrigated acres and then we live with what the canal company says, that is my argument. Commission Member Capener said so you are saying a development that does five acre lots would do a higher percentage per acre because they do not have as many homes. An engineer on a subdivision approval will go through and says here are X green space and then talk to Director Fulgham and Administrator Bench and they would say if they agree or not. Director Fulgham said it is not going to be exact science because you will not have the exact footprint of the home and driveway—it is on the average. Commission Member Capener said that is why I am saying we do it based on the study. My biggest issue is when you develop and subdivide a lot you do not know how many irrigated acres are going to be there and you cannot know until there is a home on it. Commission Member Forrest said but then you are not making the City thumb their nose at the canal company. You are letting them have theirs and not overdoing it. If I took half my lot and subdivided it and put a second house that would water 1/8 acres but then they build a small house and irrigate closer to a quarter so what, it all comes out in the wash in the end.
Commission Member Capener said I amend my motion to be .38 acres per residential developed acre and similar on the commercial on the irrigated part subject to approval of the one share, four acre-feet per irrigated acre approval by the canal. Commission Member Forrest said you are not saying the same thing as I am. Leave the canal company at their discretion to tell us what they want to do. We develop and irrigate X number of acres and if the canal company says we have to have a share per 1,000 acres I am fine with that as long as we do not do 4,000 share for 4,000 developed acres, I want it to just be with the acres. The study does not matter at this point. I want to make sure we do not over allocate or get pinched. We will have plenty of water to do what they have to do with that much water and be within our rights and then we are not thumbing our nose at the canal company. Then they are treating the City just like the farmers. If he builds a barn he can sell the excess shares. We have to deal with the canal company and how they allocate water, which is on a per acre basis. Even though we have a number that is less than what the canal company would say, that is not how they allocate water to anybody. If I am going to irrigate a full acre on ground I have to buy a full share. There are 4,000 acres in the city, but if we only end up irrigating 1,000 we need 1,000 shares. That is how I would amend the ordinance. Motion died for lack of a second.
Commission Member Capener made a motion to exact .5 shares per developed residential acre and similar on the irrigated commercial/industrial acreage assuming the canal company treats us like any other irrigated acre, but if they will allow us to do the three acre-feet we do what the study says. Commission Member Forrest said you are still saying a different thing. We exact one share per one irrigated acre based on whatever the canal company says that is. Commission Member Capener said I make a motion to exact the .38 per residential acre, per the study, and exact one for one for the irrigated acres for the commercial/industrial site plan of the subdivision or development, subject to the canal company approval. No one seconded it and the motion died.
Commission Member Forrest said I make a motion to allocate one for one on irrigated acres in the city, period. Commission Member Eberhard that is not for developed acres? Commission Member Forrest said no, it is for the acres that are under a sprinkler head. Commission Member Capener said I am all for that I just do not know how we are going to apply that. Director Fulgham said they are probably more apt to go for it because it does not undercut anything if someone builds a home on a half acre lot they have a quarter acre lawn they need that much share for that quarter acre without going to the calculation in the future I can prove to them we are using less. Commission Member Forrest said but for now it keep us 100% whole and it keeps them treating everybody the same way. I agree that when a developer comes in we will need to sit down and talk to Director Fulgham and get rough calculations. Commission Member Capener said it is impossible to define. Commission Member Stokes seconded the motion. Vote: Chairman Anderson – aye, Commission Member Capener – nay, Commission Member Eberhard – aye, Commission Member Forrest – aye, Commission Member Greener – nay, and Commission Member Stokes – aye. The motion carried on a 4-2 vote to make that as their recommendation to the City Council.
Motion by Commission Member Forrest to approve the ordinance dealing with secondary water. Motion seconded by Commission Member Stokes. Vote: Chairman Anderson – aye, Commission Member Capener – nay, Commission Member Eberhard – aye, Commission Member Forrest – aye, Commission Member Greener – nay, Commission Member Stokes – aye. Motion approved.
Administrator Bench reminded them to make a motion on the flag lots and make a recommendation on those proposed amendments to the City Council. He said there were some amendments made to make it easier to understand.
Commission Member Anderson motioned that they recommend the deep lot and flag lot development requirements to the City Council. Commission Member Capener said I cannot approve it, I do not know what it is. Administrator Bench explained the changes. In item a. he said the bottom half of the paragraph has been deleted, which said the Planning Commission may approve deep lots only if impossible or impractical. In item b. the deep lot for flag lot may be approved when the proposed subdivision meets the following requirements, with 3 through 9 being clarified: 1. says lot width, 2. is setbacks, 3. is access and clear vision triangle, 4. is private drives and right of ways, 5. is limitation of lots served by private drive or right of way, 6. is the number of buildings a lot is allowed, 7. is fire hydrant distance 8. is turnaround requirement at the end of the lot lane for fire access and 9. is a new addition that talks about the posting of an address out on the street. Commission Member Capener said it is different online. The strikethroughs are not right and there is already a number nine. This is a rewritten ordinance, you are not amending it, you are starting over. Administrator Bench said not necessarily. Some is in there and being struck out. I agree there are some additions to it like the lot width, but it is still an amendment. This page will replace that. He said this was sent to each of them for their review.
Motion by Commission Member Greener to approve the amendments to the flag lots. Motion seconded by Commission Member Eberhard. Vote: Chairman Anderson – aye, Commission Member Eberhard – aye, Commission Member Forrest – aye, Commission Member Greener – aye, Commission Member Stokes – aye. Member Capener abstained from voting. Motion approved.
4. Adjournment
Motion by Commission Member Forrest to adjourn the meeting. Motion seconded by consensus of the Board. The meeting adjourned at 7:05 p.m.
The undersigned duly acting and appointed Recorder for Tremonton City Corporation hereby certifies that the foregoing is a true and correct copy of the minutes of the Planning Commission held on the above referenced date. Minutes were prepared by Jessica Tanner.
Dated this 9th day of January, 2018.
______________________________
Linsey Nessen, CITY RECORDER
*Utah Code 52-4-202, (6) allows for a topic to be raised by the public and discussed by the public body even though it was not included in the agenda or advance public notice given; however, no final action will be taken.