Utah Supreme Court: City must clarify McElhaney permitting decision
Sep 28, 2017 | 1500 views | 0 0 comments | 137 137 recommendations | email to a friend | print
By Molly Marcello

The Times-Independent

The Utah Supreme Court has remanded a case involving a bed and breakfast back to city leaders. Now, the Moab City Council must clarify their 2014 decision to deny a conditional use permit for the bed and breakfast in the coming weeks.

Jeramey and Mary McElhaney’s plans for a 3,721-square-foot bed and breakfast with a total of five short-term rental units on Arches Drive garnered fierce opposition by their surrounding neighbors and called into question the role of public input in the conditional use permit process.

Although the McElhaney’s bed and breakfast is now up and running after a district court judge overturned Moab City’s 2014 denial, the city council’s future decisions on remand may change that status.

City Attorney Chris McAnany expects the McElhaneys — as well as their neighbors on Arches Drive — to be involved in some discussions before the council presents their clarified findings.

“I will need to get some direction from the council, but presumably it will involve going back and looking at the evidence and issuing a clearer decision,” McAnany said. “I expect that there will be some discussion with the neighborhood and the McElhaney’s attorney as well because this decision is clearly going to impact them one way or the other.”

In 2014, the Moab City Planning Commission recommended that the city council approve the McElhaney’s permit, given they adhere to some conditions including the discontinuance of an existing commercial operation.

However, the Moab City Council eventually denied that permit by a 3-1 vote, after dozens of residents in the surrounding neighborhoods spoke out against the potential bed and breakfast during the city’s public hearing process. Among the chief concerns raised by neighbors were noise and traffic increases for Arches Drive, which lies on a cul-de-sac.

“One of the five goals of the general plan is to restrict commercial development in residential zones,” said then-council member Kirsten Peterson. “I feel like we’re being asked to force a commercial use on a residential neighborhood that obviously doesn’t want anything to do with it.”

At the time, bed and breakfasts were allowed conditional uses in the R-2 zone. Those uses in the R-2 zone were later prohibited by a city council decision in 2016.

Council member Kyle Bailey — who was chairman of the Moab City Planning Commission when the conditional use language was added to the R-2 residential zone — said the code supported the permit’s denial.

“The clear intent of the language was to listen to the people of the neighborhoods,” Bailey said in 2014. “We’ve seen that this is going to have a huge impact, and I just can’t support it.”

The McElhaneys later appealed the city’s decision to Moab’s Seventh District Court. In 2016, Judge Lyle Anderson overturned the city’s decision to deny the McElhaney’s conditional use permit, stating that the council members responded to “public clamor” from neighbors who opposed the project rather than determining whether or not it met the requirements established in Moab Municipal Code.

Although the Utah Supreme Court did not address the public clamor issue in their recent ruling — they did note that the city council did not present any “explicit findings” that the McElhaney’s bed and breakfast would not meet the standards of municipal code.

“No council member spoke explicitly to what ‘reasonably anticipated detrimental effects’ motivated his or her vote,” the Supreme Court’s ruling states. “Nor did any councilmember address whether the McElhaneys could substantially mitigate the reasonably anticipated detrimental effects.”

Further, the court opined that the city council did not speak directly to how the McElhaneys might mitigate potential adverse impacts or why the original conditions the planning commission recommended would be insufficient to solve the bed and breakfast’s negative effects.

“Simply stated, if a city council is going to sit as an adjudicative body, it needs to produce findings of fact capable of review on appeal,” the ruling states. “…The Council must make additional findings of fact that are relevant to the legal standards that will govern its decision before a court can offer meaningful appellate review.”

Arches Drive resident Mike Steele, said the neighborhood is “encouraged” by the Supreme Court ruling, although he questions the need for articulating the council’s reasoning through legalese.

“We feel [the Moab City Council’s] decision to deny was sound and just,” Steele said. “The problem in this day and age is that you have to dot and cross all your legal I’s and T’s, which according to the court, the city council members didn’t do as they articulated their vote and the reasoning behind it. Who would have thought you needed your attorney to help you say ‘no, we don’t want more nightly rentals in our residential neighborhoods.’”

Craig Halls, attorney for the McElhaneys, did not respond to a request for comment.

According to McAnany, the Moab City Council will work on their findings within the “next few weeks.” McAnany said it's possible that any party dissatisfied with the decision on remand could send the case back up through the court system on appeal.

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