Neighbors of the proposed Rosalie Court subdivision filed a civil complaint in Moab’s 7th District Court against developers Scott and Lori McFarland and the Moab City Council on Tuesday, May 9. The complaint asks the court to issue a permanent injunction preventing the subdivision of the 0.55-acre lot into three separate parcels.
The complaint contends that the McFarlands’ proposed subdivision would violate neighborhood covenants established in the 1950s for the Utex Subdivision. In those covenants, property owners at the time agreed that each lot could have one single-family dwelling. The McFarlands has submitted plans to the Moab City Planning Commission that called for subdividing the lot into three parcels and building duplexes on each of the three properties.
The complaint asks the court to block the Moab City Council from approving the proposed subdivision and to prevent the McFarlands from taking further action on their subdivision application. Judge Lyle Anderson immediately denied the request for a temporary restraining order against the city and city council but postponed ruling on the request for temporary restraining order against the McFarlands until a hearing can be scheduled in the matter.
Scott McFarland has previously argued that many lots in the 1950s subdivision visibly violate the covenant without consequence, and that the covenant has only been selectively enforced.
Moab City Attorney Chris McAnany said it was likely that the case would be settled out of court.
“The city has encouraged the plaintiffs and the developer to try and reach an agreement resolving their differences and I understand that they are talking about that right now,” said McAnany.
“My understanding is that the developer was prepared to withdraw his subdivision application,” said McAnany, adding that he was unsure how the plaintiffs planned to respond. He noted that the city encourages landowners to work with their neighbors and resolve development disputes before the matter goes to court.
McAnany said that the covenant was a private agreement and that it is the responsibility of the courts, not the city council, to ensure that the parties involved abide by the agreement.
“The city does not want to intrude upon a private dispute and this truly is a dispute between property owners,” said McAnany. “The city council or the planning commission does not have jurisdiction to decide whether particular covenants are valid or enforceable and they can’t interpret those covenants in making their land use decisions. That’s a matter that’s left to the courts.”
It was unusual that the suit charged the individual council members rather than the city as a whole, said city manager David Everitt. It was possible, he said, that the charges were filed in such a way because the plaintiffs “thought there was some urgency with the meeting that the council members were having that afternoon [on May 9].”
On McAnany’s recommendation, the city council voted May 9 to table the matter pending a resolution of the suit.
The city will revisit the subdivision application after the “legal wrangling” has been resolved, said Everitt.
Scott McFarland said in an email to The Times-Independent that he is not free at this time to discuss developments in the case. He said one reason for the proposed subdivision is that it is difficult to provide housing opportunities for the next generation in Moab.
“It is my goal to find a balance between the needs of our community as a whole and the traditions of some of our older neighborhoods,” McFarland said. “As long as we are all subject to the same rules-rather then being subject to a double standard, that is a very attainable goal.”
The plaintiffs could not be reached for comment.