The Moab City Council voted 4-0 on Feb. 14 to table a decision on the Lionsback Resort zoning status agreement until its next council meeting. At the same time, council member Kalen Jones asked the city manager and city attorney to negotiate an agreement with the state School and Insititutional Trust Lands Administration (SITLA) “about the reimbursement of legal expenses should the city get sued over Lionsback.” Jones said he wants that condition to be provided in writing to the city before the council votes on the zoning status agreement on Feb. 28.
The city initially approved the Lionsback project in 2009, authorizing a plan for a 50-room hotel and 34 individual casitas on Sand Flats Road at the site of the old Lionsback Campground. The Moab Local Green Party and others sued the city over the resort development plan but the Utah Supreme Court dismissed the lawsuit in 2012, said city planning director Jeff Reinhart.
Given past opposition to the project by environmental groups and others, city officials are concerned that the city may be opening itself up to possible litigation again if the council approves changes to the project proposed by developer LB Moab Land Co. LLC as a “minor revision,” which would bypass the city’s public review process
LB Moab Land Co. LLC, has proposed to build a hotel with 50 three-bedroom units, instead of a 50-room hotel. SITLA and the developer said during the Feb. 14 meeting that ambiguities in the original plan approval did not make it clear whether the 50 units agreed upon in the original plan were one-bedroom or multi-bedroom units.
For the city, the overriding issue is whether to approve a zoning status agreement to treat the amendment as a minor change, or treat the amendment as a major change and reject the zoning status agreement. While city staff can approve minor changes, major changes must go back to the Moab City Planning Commission to be reviewed and considered.
SITLA has requested that the changes be treated as a minor change rather than a major change, said Moab City Attorney Chris McAnany.
If the change is not approved as a minor change, SITLA officials have said they could invoke a state law that exempts projects on state land from being subject to local zoning regulations, effectively ending city control over the development project.
“From SITLA’s perspective, there is an extreme reticence about going back into the full-on panoply of various planning commission and other public hearings, all providing the opportunity for third parties to drag this into another five years in the court system,” said SITLA Associate Director and Chief Legal Counsel John Andrews.
Reading from state code, Andrews said “nothing in [the municipal land code development act] may be construed as giving a municipality jurisdiction over property owned by the state.”
However, Andrews added, “If we said, we’re just going to do it, still, we’d have to provide [the city] with a development plan and schedule ... to be provided no later than the commencement of construction.” The state would still be bound to pay the city impact fees, officials said.
McAnany said the plan amendment qualifies as a major change, according to city code.
“It was the city’s position all along that this was a major change and should be processed as a major change, but SITLA said, ‘we disagree, and we have a zoning exception that exists in state law,’” said McAnany. “So this agreement [to treat the amendment as a minor change] is a compromise document, and by definition, in a compromise, no one gets exactly what they want.”
During a Dec. 20 city council meeting, Andrews said SITLA and the developer had been led to believe the city agreed the changes could be considered minor.
“The tweaks to the development were approved by staff,” Andrews said Dec. 20, adding that the developer then spent hundreds of thousands of dollars on planning and design “based on the representation that the project was moving forward.”
Andrews said that during those conversations with city staff, the developer was told the changes could be treated as a minor plan revision, meaning the process would be handled internally.
However, in the spring of 2016, city officials determined the changes should be considered a major plan revision, which would trigger a new review process, including additional public hearings, he said.
Approving the amendment as a minor change could open the city to litigation, McAnany said.
“We’re bound to follow our own codes and when we depart from that, we do so at our own peril,” said city attorney McAnany. “It doesn’t insulate us from third party claims ... anyone can file a lawsuit at any time.”
Council member Tawny Knutson-Boyd expressed a hope that jobs created by the development would benefit the community.
“I’m hoping that you’re not going to have a whole bunch of nine-dollar per hour jobs that people will struggle with and have to work two or three jobs to make ends meet,” she said.
Michael Badger of LB Moab Land Co. said his employees receive benefits and paid vacations, and that he wants them to be happy in their jobs.