Sensitive Area Overlay Ordinance Revision

Ogden Planning Commission Meeting Notes 02.07.07

By Curmudgeon

On Wednesday, 7 February, the Ogden City Planning Commission met and discussed [among other things] a proposed revision of the Sensitive Area Overlay Ordinance that had been drafted by the city planning staff which recommended its adoption. Six members of the Planning Commission were present.

The discussion began with Mr. Montgomery, of the City Planning Staff, summarizing the reasons a new Sensitive Area Overlay Ordinance [SAOO] was needed, and summarizing the changes the new ordinance would make. He noted that 9% of the city’s land is covered by a SAOO, and that 56% of the land covered by the ordinance is currently zoned as open space, and 44% of it is zoned for development [mostly zoned residential]. A new ordinance is needed, he said because (a) we now know of more potentially unsafe areas for construction than we knew about when the SAOO was first adopted in 1985. Those areas need to be brought under the new ordinance, he said. (B) single family homes can not be built now on land sloped more than 30% but the present ordinance permits multiple family units to be built if the average slope of the development lot is under 30%, which means some areas of the lot with greater slopes can be built on for multiple family units ( C) The existing ordinance includes no effective enforcement provisions, and no way to regulate changes a developer might decide to make in a project once his has gotten permission to develop the land from the city. (D) there is no intrinsic rationality to the 30% slope ban because homes have been built on much steeper lots before the 1985 ordinance was adopted with problems, homes have been built [and can continue to be built now] on steeper lots outside the SAO zone, and there is no inherent geology-based reason why, in certain locations, such construction cannot be safely done. And, finally, (E) it is unfair to property owners within the SAO zone that they cannot build on land [because of the slope restrictions] that the owner of the property next door can build on simply because his property is just outside the SAO zone.

The proposed ordinance would also include new, and more detailed, definitions regarding allowable height of retaining walls, depth of cuts, fire control requirements [i.e. a “defensible” space free of overhanging or thick vegetation around new homes, and so on]. And it would provide for the first time enforceable fines for violating provisions of the ordinance. To accommodate wildlife, it would ban construction in stream corridors and adjacent riparian areas [defined largely, it seems, by vegetation]. It would also expand the SAO zone to include about 160 acres [now zoned residential] of new potential problem areas not covered under the existing ordinance. And it would require that developers provide a range of geologic and other studies prior to gaining permission to develop land within the zone, studies covering such matters as water flow, earthquake hazards, slide potential, etc.

At a work session, members of the PC had concerns about preserving wildlife habitat under the ordinance, open spaces, “vista” views, etc. Mr. Montgomery reported that most of the land under the SAO is already zoned open space. That the undeveloped land now zoned residential exists in small, separated and isolated patches, not really suitable for wildlife habitat because the parcels are surrounded on three, and sometimes four, sides by existing development. He suggested, with slides for example, that scenic views of the mountain ridges and crests would not seriously be impeded by development within the zone, and that the ordinance would regulate things like construction height, the extend of rockfield retaining walls, etc which also have an adverse visual impact and which now are virtually unregulated.

Furthermore, the ordinance could include provisions to encourage clustering development as a way to preserve open space and reduce impact on steeply sloped lands. The Planning Staff offered the Commissioners three options to do this. Option 1: discourage single family residences by offering incentives [higher density allowances] to build multi-units in clusters instead on lower sloped portions of the land. Option 2: encourage clustering by offering higher density allowances in exchange for not developing portions of tracts adjacent to, say , Forest Service Land [thus preserving wildlife habitat contiguous to existing habitat]. Option 3: Make no distinctions between single family and multi-family residential lots in the zone, and encourage clustering by offering the same incentives to developers of both.

The Commissioners then began discussing the proposal in detail. Much discussion, but generally two main areas of concern emerged, one raised by Mr. Herman [and echoed by others], another raised by Mr. Hyer [and echoed by others.] Mr. Herman’s concern was that there were housing densities permitted under this ordinance were too high for foothills land, that there were insufficient incentives for landowners to cluster development off the most steeply sloped portions of their land. Mr. Herman preferred the approach used by Salt Lake City, which had created a special “Foothills Zone” in which the minimum lot size was very very large. That provided, he said, a strong incentive to developers to cluster and moved development off the most sloped portions of tracts in return for being permitted to develop more homes [clustered] on lower and more level portions of their land. [Discussion got complex, but that I think was the gist of Mr. Herman’s concern and solution.]

Second major area of concern was raised by Mr. Hyer, who noted that the penalties for violations of the new zoning rules were insufficiently high to prevent violation, e.g. only $500. He’d seen elsewhere that low penalties when people were building million dollar homes, were ineffective because the owner simply said “I’m going to pay the fine and just do what I want.” Mr. Montgomery replied the fines continued to grow over time until the problem was “fixed.” Mr. Hyer and others replied that some violations could not be fixed: e.g. if you clear cut an area in which natural vegetation was not to be removed, how would you fix it? Ditto making a deep cut onto a slope. Once it’s done it’s done. Fines needed to be substantially higher to prevent violation beforehand.

The floor was then opened for public comment. Five people spoke [two minutes per speaker allowed.] First, Dr. Sam Zeveloff, chairman of the Zoology Department at WSU, holder of graduate degrees in wildlife management and editor of an international journal of wildlife management]. He testified that the planned ordinance did not sufficiently protect critical wildlife habitat in the zone, that the riparian corridors to be protected were not clearly defined, that other non-riparian areas [like oak scrub] provided important habitat for many species. [Note: after presenting his credentials, the Professor had all of 90 seconds to offer the Commission his expert testimony.]

Next Rob Garner spoke, insisting that the purpose of the SAOO seemed to have changed. The old one was intended to preserve open space as a major goal; the new one seemed to have as it main purpose to maximize development. The proposed ordinance would also, he thought, violate the general plan’s provisions regarding open space, Finally, he suggested that the ordinance include a cost/benefit analysis of ay proposed development in the SAO zone. Would the cost of improving infrastructure and providing city services to the new development exceed expected tax revenues, etc.

Next, Mr. David Smith noted that Mr. Montgomery spoke of the unfairness of limiting slope development in the zone, but not such development just outside it as a reason to adopt the ordinance. Mr. Smith wanted to know where all the property owners who claimed they were being unfairly treated were? None had spoken at the previous public hearing on this. None spoke tonight. Mr. Smith suspected the real motive behind the revision was to serve the needs of “a developer” who a year ago told the city the three things he wanted done to accommodate his project. And this was one of the three. It worried him that “only the planning staff” has spoken for this change. No property owners.

Next up, Teresa Holmes, who spoke of the community’s desire to protect Mt. Ogden park lands from development. “You can’t save open space by building on it, “ she said.

Final speaker [whose name I didn’t get] said that as you increase slope, you increase risk to homes built on those slopes. If problems develop, the bill falls to the taxpayer to deal with, since the developers will be long gone, in most cases, by then. He also worried that so much of the approval process under the ordinance seemed to be placed in the hands of the mayor, who was the very person who would be negotiating development agreements with developers and this seemed a conflict of interest.

The Commission then began discussing the proposals again. Discussions covered how riparian wildlife zones might be defined, the cost/benefit matter [Mr. Montgomery replied that infrastructure construction within a development would be paid for by the developer], Most of the discussion centered around the question of whether the ordinance as drafted would permit residential densities too high for foothills land, and [same matter phrased differently] whether the ordinance contained sufficient incentives to developers to move building off the steeper grades in return for being allowed to build more units, clustered, on less sensitive portions of their land. Mr. Herman again suggested Ogden needed a “Foothills Area Zone” to achieve that, and to do what the proposed ordinance did not. And, he said, it would be unwise to go ahead with the existing ordinance until a Foothills Zone had been established. Much discussion, as some members shared Mr. Herman’s concerns, and others did not or did, but were content to pass the proposed SAO ordinance now and wait to craft a Foothills Zoning Ordinance later.

One other interesting comment. The Commission member who sits just to the chairwoman’s left [I did not note his name] expressed some concern that the Commission was acting to accommodate “a proposal we have not seen.” The propriety of shaping the city’s zoning to meet the requirements of a development proposal that no one had yet seen concerned him, and he thought that might in fact be what was happening. Some discussion followed, but no resolution of the issue.

Finally, a member [ I think it was Commissioner Schade] moved that [with minor revisions] the staff proposed SAO be adopted. The motion failed by a vote of 3-3. Then Mr. Herman moved that the SAOO be adopted, but that the existing ban on construction on land sloped more than 30% be left in place, for the time being, until the Planning Staff and Commission worked up a Foothills Zone better defining permitted densities in foothills developments, and better incorporating incentives for developers to surrender development rights on steeply sloped land in return for being permitted to build higher density units, clustered, on less sensitive portions of their properties. The motion carried, 4-3. Mr. Montgomery then asked for guidance about what areas the Commission wanted the staff to consider for Foothills Zoning. Some discussion, but it seemed that the Commission wanted included everything above [generally east] of already developed properties on the Ogden bench, except isolated, small and “cut off” undeveloped patches not surrounded, or nearly surrounded by existing development.

The Commission then moved on to other business.