Eagle Mountain City Council, 5 October 2021

Councilmember Curtis moved to approve the consent agenda with the condition that item 9B will move forward with the hybrid contract as presented and staff be directed to send out requests for bids for information technology services and investigate options for bringing information technology services in-house and present the findings to the City Council. Councilmember Clark seconded the motion. Those voting aye: Donna Burnham, Melissa Clark, Colby Curtis, and Carolyn Love. The motion passed with a unanimous vote. SCHEDULED ITEMS 13. ORDINANCE/PUBLIC HEARING 13.A. ORDINANCE/PUBLIC HEARING – An Ordinance of Eagle Mountain City, Utah, Approving the Second Amendment to the Fiscal Year 2021-2022 Budget. Finance Director Kimberley Ruesch presented the item. This is the second amendment to the Fiscal Year 2021-2022 budget and includes a request for increased funding in the General Fund of $118,169 as well as the Capital Projects Fund in the amount of $30,000. Within the General Fund, an additional FTE is being requested in the Project Management/Facilities Division for an Emergency Specialist/Coordinator. The need for this position is to help with Emergency Management. This person will help keep the emergency operation plan up to date and functioning, apply for grants, plan exercises and trainings, and create and maintain relationships with new stakeholders that arrive in the community. Proposed funding for this position has been pro-rated through the end of the fiscal year. Additional funding in this division is also being requested to cover repairs to the fire sprinkling system at City Hall. Information Technology Services division is requesting additional funding to transition our current service model with Executech to include a 24/7 service desk for all employees to be able to access technical support. The proposed revenue source for the requested expenditures is sales tax revenue that is coming in above projections. Within the Capital Projects Fund, an increase is being requested to fund the creation of a dog park area within the Pony Express Memorial Park. This project was reviewed with Council in September and recommend for funding. The proposed revenue source for this project is Park impact fees. Mayor Westmoreland opened the public hearing at 7:57 p.m. Michael Johnson thanked the Council for the help with lobbying for a dog park over the past four years. He appreciates the support from the Mayor and Council and for their efforts in making the City more desirable. They are restarting the Eagle Mountain Dog Park Foundation nonprofit and are awaiting 501(c) approval from the State. They have been contacted by two different companies offering to support their efforts. They will work with the Parks and Recreation Department on the dog park plan. Mayor Westmoreland closed the public hearing at 8:00 p.m.

Councilmember Curtis moved to approve an ordinance of Eagle Mountain City, Utah, approving the second amendment to the Fiscal Year 2021-2022 Budget. Councilmember Burnham seconded the motion. Those voting aye: Donna Burnham, Melissa Clark, Colby Curtis, and Carolyn Love. The motion passed with a unanimous vote. 14. MOTION 14.A. AGREEMENT – Approving a Deed of Conservation Easement. City Attorney Jeremy Cook presented the item. The Deer Haven project has been approved subject to the approval of the conservation easement. t He feels the restrictions proposed in the easement area are vague and not as the Council had anticipated. This proposal is more restrictive than the applicant had intended and possibly more restrictive than the Council contemplated. He proposed more strict restrictions for Council consideration and inclusion or removal as the Council feels appropriate. Allowances in conservation easements vary significantly. This easement is unique as it covers developed property both back and front yards making it difficult to restrict all improvements or landscaping. Councilmember Love said that she prefers the agreement be explicit rather than vague to prevent confusion on permissibility. Mr. Cook agreed with the desire to be explicit as many of the improvements will not require permits and the potential of enforcement difficulties. However, all the suggested restrictions may not be necessary in order to achieve the intent and purpose of the wildlife corridor. Applicant representative Scot Hazard said he agrees with the preference of explicit language but feels the zoning language as a whole is confusing and conflicting. He has consternations in the proposed restrictions as his intention has always been for the homeowners to be able to use the land where the lots are encumbered by the wildlife corridor. The purpose of an easement as opposed to a dedication of the land was for the land to remain usable. The way the easement is written, it would be an equivalent of a taking via a dedication of the property. He requested feedback to understand the desires of the Council to allow him to consider if he is able to accommodate their requests. He has not requested additional density or compensation. A developer goes out of business if the project fails to sell the end product for enough money to purchase property for the next development. The margins are narrow on this project and the restrictions as proposed would render it unprofitable. The wildlife corridor covers almost 18 acres of the 40-acre development and over nine acres meet the code of fully developable property under the City’s slope standards. He is giving the property up for the easement but desires to be able to use it in a reasonable manner. Mr. Hazard stated the Eagle Mountain Nature and Wildlife Alliance resident group has expressed concerns with the fragmentation of the corridor. Their view appears to be fragmentation within the corridor, which he views as a contradiction due to the allowance of roads, recreation vehicles, bathrooms, and observation structures. He has viewed wildlife navigate around improvements in backyards such as swing sets, boats, or trampolines. He feels fragmentation means making a section of the corridor impassible and supports wildlife fencing. He objects to requiring approval for many of the uses as the process will be onerous. For the most part, the residents are losing one- third to a half of their property to the easement. In his experience as a real estate broker, the location next to the wildlife corridor will not provide for selling the lots at a premium because the open space is unimproved. If the Council determines all the restrictions are necessary, he either needs to divide the lots into smaller parcels or determine other compensation to make the project financially feasible. He noted that the proposed standards require approval for certain activities or exemptions but do not include clear instructions on the application process. The financial impact of the proposed restrictions is approximately $100,000 per lot, or a total of $700,000. The raw ground price of developable property in the City is currently $125,000 an acre, resulting in an impact of over one million dollars in land he is giving up for the conservation easement. Mayor Westmoreland acknowledged that Mr. Hazard has invested years of effort to accommodate the corridor and has invested many hours in conversations with various interested parties. Mr. Hazard said that he is dedicating a 50-foot width of the wash within the 330 feet of the wildlife corridor. Councilmember Clark said she appreciates Mr. Hazard’s efforts. She desires to accomplish the goal and intent of the Wildlife Corridor Overlay Zone which will only work if the property owners agree to the restrictions. She appreciates the Eagle Mountain Nature and Wildlife Alliance resident group reaching out to the Council regarding their priorities and concerns. She suggested reviewing the conservation easement line by line. Mr. Cook noted the difficulty in anticipating potentially problematic desired future improvement of the lots by residents that purchase the properties that may impede wildlife migration. Councilmember Clark stated the issues they are addressing are difficult because such considerations are generally governed by homeowner’s association covenants, conditions, and restrictions (CC&Rs) versus City regulations. Due to the unique aspects of Deer Haven, the Council could acknowledge the differences and develop standards specific to this subdivision. Councilmember Curtis advocated for compromise to achieve a resolution amenable to all parties recognizing some sacrifice would be necessary on each side and concurred with establishing standards specific to this project in order to protect a contiguous corridor. The Council determined to review Mr. Cook’s proposed edits to the conservation easement document to address priorities and resolve the concerns of the Council and Mr. Hazard: • Recitals o “J. In accordance with Utah Code Ann. § 57-18-4(4), Grantor is aware of the types of conservation easements and the legal effect and has consulted with an attorney with respect to the implications of granting this Easement.” Mr. Cook explained the Utah Conservation Act requires the inclusion of the language. Mr. Hazard agreed to retain the language in the agreement. • Section II o A. Affirmative Rights of Grantee. ▪ “i. To prevent Grantor or third persons (whether or not claiming by, through, or under Grantor) from conducting any activity on or use of the Easement Property that is inconsistent with maintaining the property predominantly in a natural, scenic or open condition for wildlife habitat, the purpose of this Easement, and to require of Grantor or third persons the restoration of such areas or features of the Easement Property that may be damaged by any inconsistent activity or use;” Mr. Hazard requested for the term “natural” to be better defined to prevent confusion and advocated for allowing landscaping improvements and lawns. He believes most residents will not fully improve the full lots due to cost and maintenance burdens. Councilmember Love requested clarification regarding the amount of property intended by the term “predominately.” Discussion ensued regarding permitting gardens and landscaping while recognizing the deer might eat the vegetation, whether natural means native vegetation, the variance in the impact of setting a percentage on the one-acre lots in comparison to the ten-acre lot, and the ability for wildlife to travel over landscaping improvements. Staff and Council determined that later verbiage in the agreement indicates that while native landscape is preferred, the addition of non-native vegetation and landscaping should be permitted. • Section III Easement Property Uses and Restrictions: Use of the Easement Property by the Grantor shall be subject to the following conditions and restrictions. If a use of the Easement Property is not specifically prohibited herein, such use is permitted unless the use violates the terms of this Easement, poses a serious threat of material damage to the Conservation Values protected by this Easement, or otherwise violates any law, local ordinance, or recorded covenant, condition, or restriction.” o “A. Construction of Structures. No homes, accessory buildings, barns, sheds, enclosures, or other above-ground structures or other structures that require footings may be constructed on the Easement Property. Structures that do not require footings may be constructed.” Councilmember Burnham verified that accessory dwelling units (ADUs) were not allowed in the conservation easement. She suggested setting a square footage limit and clarifying that ADUs and other undesired buildings are prohibited. Councilmember Curtis expressed concern that “accessory building” is a nebulous term. He is more concerned about the use of the structure than the size of the structure. Mr. Hazard stated he had recommended not allowing buildings that require footings to limit the size of a building that could be constructed. He envisions allowing sheds or lean-tos to cover animal feed. However, he is undecided on whether to convey animal rights to Deer Haven properties due to use conflicts in the Arrival development and the market not attracting horse owners to the development. Discussion ensued regarding the types of buildings that require footings. Councilmember Love suggested restricting homes, AUDs, and buildings that require footings within the conservation easement. Councilmembers Burnham and Clark concurred. Councilmember Curtis stated he had concerns with other buildings. Mr. Cook suggesting including a size limitation for the square footage of a structure not to exceed 20% of the lot area. Mr. Hazard stated he was amenable to prohibiting homes, ADUs, and buildings that require footings. His only concern with the percentage limitation is the impact to lot 105 and 106 but feels a 20% allowance is more than adequate. o “B. Recreational Amenities. No recreational amenities, including, but not limited to, trampolines, swimming pools, swing sets, hot tubs, pergolas, ponds, or riding rinks may be constructed on Easement Property.” Councilmember Burnham expressed concern with permitting swimming pools due to the possibility of wildlife falling into pools. Mr. Cook clarified that “riding rinks” are tracks for motocross vehicles. Mr. Hazard said prohibiting swimming pools should not be an issue for the majority of the lots as residents generally desire proximity to the home; pool` and hot tub placement would be outside of the easement. Lots 105 and 106, due to the non-traditional shapes and setbacks, may have issues with locating pools fully outside of the corridor. He would prefer all the other recreational amenities listed to be allowed, other than in-ground and above-ground swimming pools, hot tubs, and riding rinks. o “C. Hard Surface. Except for a driveway for the primary residence, no concrete or asphalt driveways or parking pads may be constructed on the Easement Property.” Mr. Cook suggested limiting the square footage of hard surfaces not to exceed 20% of the area. Councilmember Clark requested consulting an expert to determine if gravel or hard surfaces have an impact on wildlife and if one material is preferable over the other. Councilmember Clark and Curtis expressed concern that permitting 20% hard surface area within the easement was too permissive. Mr. Hazard said he prefers for residents to store recreation vehicles and trailers on hard surfaces but had no objection to a 20% limitation. The CC&Rs will require for recreational vehicles to be stored adjacent to a building and he would support including the same requirement in the conservation easement agreement. o “D. Storage Materials. No materials may be temporarily or permanently parked or stored on the Easement Property, including, but not limited to, shipping containers, trailers, campers, vehicles, equipment, or construction materials. Grantor may store hay or other feed for animals on the Easement Property.” Discussion ensued regarding the allowance for hay or other feed storage but the prohibition of a structure to store the feed, problematic uses including business uses, and the types of vehicles and equipment to restrict. Councilmember Burnham expressed concern with the storage of poisonous materials. Mr. Hazard suggested prohibiting heavy equipment and construction equipment storage and vehicle storage or rental businesses while permitting recreational vehicles within the corridor adjacent to buildings. He agreed with prohibiting shipping containers, outdoor storage, hazardous materials in an open enclosure, and construction materials, other than during active, onsite construction projects. o “E. Construction During Mule Deer Migration Season and Nesting Season. No construction of any kind, including the construction of trails and/or fences, is permitted during the mule deer migration season and the nesting season unless the Grantor has obtained certification from the Utah Division of Wildlife Resources that the construction area will not impede migration or nesting during the proposed construction period. Mule deer migration season refers to the time of year the mule deer migrate between their winter and summer ranges and occurs between March 15th and April 30th and December 1st through January 15th annually. Nesting season refers to the period of the year in which birds are building nests and raising young and occurs between March 15th and July 31st annually (together the “Restricted Seasons”). The following uses shall not be permitted on the Easement Property during the Restricted Seasons:” ▪ “i. Construction of any kind, including the construction of trails and/or fences, unless construction area will not impede migration or nesting during the proposed construction period.” Mr. Cook clarified that he had moved rather than added the requirement. Mr. Hazard confirmed he had no objections to the verbiage. ▪ “ii. Off-leash dogs, cattle, or other animals that have the potential to scare mule deer or interfere with bird nesting.” Councilmember Burnham stated that she understands that the DWR would likely desire all dogs to be prohibited but a balance needs to be achieved. Discussion ensued regarding the difficulties in determining the appropriate number of dogs to allow in order to mitigate impacts to the wildlife corridor and the number of dogs currently permitted in Municipal Code standards per acreage of property with the option for the Planning Commission to approve additional dogs. Mr. Cook explained that the language was intended to be vague as the City would only enforce egregious situations where dogs were preventing the migration of the mule deer. Mr. Hazard stated that as the number of dogs is already controlled elsewhere in Municipal Code, he did not feel it needed to be stipulated in the agreement but he would be open to limiting the number of dogs to four for the entire project. Nevertheless, he is concerned prohibiting dogs in the corridor during migration and nesting season will be cumbersome and difficult to enforce. Implementing one standard for all the lots for the entire year would be easier to control. o F. Fences: ▪ “i. Wildlife Impermeable Fencing. Wildlife impermeable fencing is prohibited on the Easement Property or on the sides of the Easement Property that connect to other portions of the Easement Property or open space.except along the perimeter of the Easement Property, where it is encouraged. Wildlife impermeable fencing is defined as a fence or wall, other than a retaining wall, that prevents various species of wildlife from freely passing through with little or no interference. Except for gates and associated gate support components, a fence or wall that is higher than 8 feet above grade, inclusive of any wire strands placed above a top rail of a fence of wall, is considered impermeable fencing.” Mr. Hazard stated he had a conversation with Ms. Cameron regarding the purpose of requiring wildlife fencing and he agreed with her reasoning and has no objection to the requirement. He stated he was willing to include in the CC&Rs that wildlife impermeable fencing outside of the wildlife corridor is only permitted to protect a garden, orchard, or another specific purpose. Mr. Cook and Mr. Hazard agreed to remove Section VIII – Baseline Documentation Report as it had been included for tax purposes but was later determined not to be necessary to be included in the conservation easement documentation. Mayor Westmoreland stated that due to the emotions regarding the project and the desire to accommodate two things that are important to the City – wildlife and property rights – he would allow public comment. Bettina Cameron was recognized to speak. Ms. Cameron said she was disappointed in some of the changes and beseeched the Council to limit the terms of the approval to the lots in Deer Haven, due to the unique terrain and limitations of the property, and exclude all other areas within the wildlife corridor as considerations for other areas of the corridor will require different standards. Councilmembers Burnham, Clark, and Love supported Ms. Cameron’s suggestion to limit the agreed-upon term specifically to the conservation easement for Deer Haven. Discussion ensued determining to table the item to allow time for Mr. Cook to redraft the language to include the amendments agreed upon by the Council and Mr. Hazard and to provide an opportunity for additional public comment on the changes.

Councilmember Clark moved to table an agreement approving a deed of conservation easement with direction to staff to prepare an amended agreement to review at the next possible City Council meeting. Councilmember Love seconded the motion. Those voting aye: Donna Burnham, Melissa Clark, Colby Curtis, and Carolyn Love. The motion passed with a unanimous vote. 15. CITY COUNCIL/MAYOR'S BUSINESS 16. CITY COUNCIL BOARD LIAISON REPORTS Councilmember Curtis Councilmember Curtis said the Library Advisory Board is seeking applicants for two vacancies and recommended his wife to fill one vacancy. He asked if anyone had any objections to let him know. Councilmember Burnham Councilmember Burnham said the Senior Citizen Advisory Council has a vacancy that needs to be filled by the end of the year with a preference for an individual with technical skills. Councilmember Love Councilmember Love said the Eagle Mountain Chamber of Commerce will hold an after-hours activity on October 14, 2021, from 5:30 to 7:00 p.m. at MTECH Trades and Tech Building and a combined chamber bowling activity on November 2, 2021, from 11:45 a.m. to 1:00 p.m. at Fat Cats in Saratoga Springs. Councilmember Clark Councilmember Clark said Be Ready Eagle Mountain is holding a preparedness class on October 21, 2021, at 7:00 p.m. at City Hall with special guests Columbine survivors Laura Hall and Sarah Bush speaking about hope and healing for traumatic experiences. A successful drill and after- action report meeting were held. The team has trained and licensed 220 Ham radio operators in the City and the repeater station is almost completed. A draft version of the City’s emergency plan will be presented to the Council soon. The Parks and Recreation Advisory Board has a vacancy. Director of Administrative Services/City Recorder Fionnuala Kofoed said she is working with the Youth Council to prepare and run a booth at Halloween Town. She announced that a debate for the Mayoral and City Council candidates on the ballot for the upcoming municipal election will be held on October 18, 2021, at 7:00 p.m. at City Hall. Residents may attend the debate in person or watch the live broadcast via a link on the City website. 17. COMMUNICATION ITEMS 17.A. Upcoming Agenda Items 18. ADJOURNMENT