Eagle Mountain Mayor Facilitates “Special Public Hearing” for Developer Lobbyist.

During the June 2nd City Council Meeting Mayor Tom Westmoreland facilitated a “Special Public Hearing” on the discussion of Impact Fees that are charged to developers. This is not the first time this item has hit the City Council agenda. It had its “Official Public Hearing” on May 5, 2020, with a follow-up on May 19, 2020. The City Council had several questions and issues with what was proposed so the consultant that prepared the report went back with their comments and addressed them. The presentation by the consultant (Fred Philpot of Lewis, Young, Robertson, and Burningham) stated that they had “Received Feedback and Input on Proposed Fees” and then “Modified Fees and Documents According to Feedback from Council and Public.” The item being discussed was Item 13.D on the agenda. The item is titled, “ORDINANCE – An Ordinance of Eagle Mountain City, Utah, Adopting an updated Impact Fee Enactment for a Parks and Recreation Impact Fee; Providing for the Calculation and Collection of Such Fees; Providing for Appeal, Accounting, and Severability of the Same and Other related matters.” It should be noted that the item does not appear on the agenda as a public hearing. Unlike the previous three items were that appeared on the agenda as Ordinance/Public Hearing items.

The Mayor after introducing the item made the following comment, “Technically this is not a Public Hearing, but we are going to treat it as such, just for good measure. So, just to make sure we cover everything. So…”

After the city consultant finished with his presentation the “Public Hearing” was opened up to Deann Huish from The Utah Valley Home Builders Association (UVHBA). The About-Us page on the UVHBA website states the following, “The Utah Valley Home Builders Association is the leading company in Utah actively working to protect, preserve and promote Utah housing and individuals working in the construction industry.” The website continues, “To echo our slogan, the UVHBA protects, preserves and promotes the building industry in Utah, the UVHBA hosts a team fully engaged in being an advocate for its members on local, state and national issues.” In short, the UVHBA is a lobbying group for builders that are members of the association. Members of UVHBA include builders in Eagle Mountain, such as, D.R. Horton, Fieldstone Homes, Flagship Homes, Ivory Homes, and Patterson Homes to name a few. All of these builders would benefit from lower or unchanged impact fees.

Deann had several items that she discussed. One of those being the short period of time that her group had to look at the documents to form an opinion. Those documents are given to the City Council the Thursday before the City Council meeting and made available to the public usually the following day, or the Friday before the meetings. It is short notice, but the public is not given the extra time or accommodation of a “Special Public Meeting” because they were unable to come up with an argument in that short of a time. This brings to question, is this time to short? Should the city release the documents earlier? How can the public and City Council that doesn’t have a “team fully engaged” make an informed comment or argument for the Public Hearing? It should also be noted that this item first appeared before the City Council on May 5th, 2020.

This is not the first time that Deann Huish discussed this. During the May 5th meeting, she sent an email to the City that was included in the public hearing. Davis Lewis IV for D.R. Horton Construction also had an email entered into the record. D.R. Horton is a member of the UVHBA and stated “Deann is correct in her comments as she submitted.” in his comments. During this meeting, both the developer and the association were given their chance to speak. The residents were not given the opportunity or even knew that the “Special Public Hearing” was going to be held, their only public input was during the May 5th meeting.

I asked the Mayor and City Recorder about this and why the “Special Public Hearing” was allowed and if it has been allowed before.

Date: Wed, 3 Jun 2020 12:25:05 -0600
Subject: Question about City Council Meeting last night.
From: Mike Kieffer
To: Mayor , Fionnuala Kofoed , council@emcity.org

Mayor and City Recorder,

I have a question about how item 13.D “ORDINANCE – An Ordinance of Eagle Mountain City, Utah, Adopting an updated Impact Fee Enactment for a Parks and Recreation Impact Fee; Providing for the Calculation and Collection of Such Fees; Providing for Appeal, Accounting, and Severability of the Same and Other related matters.” was addressed in the June 2nd City Council Meeting. (I have included the City Council on this email as well. If any of them would like to comment, I would love to hear it.)

Deann from UVHBA was allowed to address the City Council on an item that she was not the sponsor for or an item that was not a public hearing. The agenda item had no mention of it being a public item, but it was opened as one. I would like to know why this was allowed to happen, and why UVHBA was given access to the City Council during a City Council meeting that no other member of the public was. Has a special public hearing like this happened before? And if so, under what circumstances? Are question and answer sessions also allowed as part of public comment? One of the reasons that Deann gave for this special public hearing was that she did not have access to the documents in a timely manner. Based on comments in the meeting, it sounds like she might have even had the documents given to her prior to the council receiving them, and she also had meetings with staff. Is this correct? If Deann, whose full-time job is to monitor City Policies, did not have time to read and address the issues, how can the City Council be expected to be prepared to discuss the item? Or a member of the public prior to the meeting?

I will be running an article on this in the next few days. I would love to be able to add your comment to the article. I think the article would have more meaning if I did not have to use the phrase “Eagle Mountain City was asked about this and did not give a responding comment.”

Thanks for your time,
Mike Kieffer
cedarvalleysentinel.com iNSIDER

The Mayor responded to my question with the following email.

From: Mayor Mayor@emcity.org
To: Mike Kieffer mkieff@gmail.com
CC: Fionnuala Kofoed fkofoed@emcity.org, council council@emcity.org
Subject: Re: Question about City Council Meeting last night.
Date: Wed, 3 Jun 2020 19:50:17 +0000

The answer to your question is quite simple really. We took the advice of our legal council. He is the expert on such matters and why he is contracted with the city.

Mayor Westmoreland
Eagle Mountain City

Council Member Love also responded to the email. Here is the email that she sent to me in regards to the importance of evaluating impact fees and why she felt that the “Special Public Hearing” was required on the subject.

From: Carolyn Love clove@emcity.org
To: Mike Kieffer mkieff@gmail.com
Subject: Re: Question about City Council Meeting last night.
Date: Fri, 5 Jun 2020 18:28:03 +0000

Thank you for your email. Here is my response. I am sure you already know most of this, I just wanted to provide it as context to my support for the decision to allow comment in our meeting.

Charging and periodically evaluating impact fees is one of the most important things that they city can do to make sure that new growth doesn’t have a negative impact on the city and its current residents. Because of the complicated regulations that exist in calculating what we can charge, we hired a consultant to assist in this. The HBA, in representing home builders, is concerned that these charges aren’t overinflated. They secured their own consultant who challenged the large increases being proposed by the city. Deann Huish’s comments in our 6/2/2020 city council meeting were included as part of the general public comments. Even though this item was not a public hearing, it is my opinion that it was in the best interest of the city to address her comments and allow the UVHBA to be heard. In allowing a dialogue to take place, we were able to have her technical questions addressed directly by the expert, our consultant. Members of the public were allowed to comment in a previous meeting even if they weren’t given a second opportunity. I feel that it was in the best interest of the city to take the opportunity to address the concerns of the HBA in an attempt to avoid potential disputes. By allowing this, I felt confident in passing the increased impact fees in that meeting, instead of delaying. Now the increased impact fees can start having a positive impact on the level of services that they city is able to provide as we grow.

Please let me know if you have any questions.

Thank you for keeping us on our toes!

Carolyn Love

Eagle Mountain City Council

City Code states the following about the City Council Agenda, “Subjects under consideration at every public meeting are limited to the published agenda and the meeting is limited under the requirements of the Utah Open and Public Meetings Act to the items stated on the agenda, unless an emergency exists as defined in the Open and Public Meetings Act for the consideration of a matter not on the published agenda.” It also states that the Mayor is the one responsible for creating the agenda. “The mayor is the presiding officer of the Eagle Mountain city council in the preparation of the agenda for meetings of the city council in compliance with the Utah Open and Public Meetings Act. Agenda materials, supporting documents and staff recommendations for a city council agenda shall be submitted to the office of the city recorder no later than noon on the day 48 hours prior to the required date and time for distribution to the mayor and members of the city council of the agenda and supporting materials for regularly scheduled city council meetings.”

I then sent an email to Jeremy Cook, the Cities Contracted lawyer as noted in the Mayor’s Response. The email simply said, “Jeremy, would you care to explain in more detail? I would like to see if I can get answers to my previous questions.” And I included a copy of the email that I sent previously to the Mayor. Jeremy forwarded the request on to the Mayor and the Mayor responded with this email.

From: Mayor Mayor@emcity.org
To: Mike Kieffer mkieff@gmail.com
CC: Jeremy Cook jcook@ck.law
Subject: Impact fees
Date: Fri, 5 Jun 2020 04:06:05 +0000
Message-ID: 85742C31-95F1-445A-AE1C-489B4F62A351@Emcity.org

Mike,
I understand that you sent an email to our attorney, Jeremy Cook, indicating that you did not feel like my answer to your email adequately addressed your questions. Therefore, please see the additional response below:

With respect to the UVHBA having access to the documents, the documents were available to the public. As far as I am aware, Deann was the only person that requested copies of the documents and the only person that contacted the City staff with specific questions or concerns regarding the calculation of the park and recreation impact fees.

With respect to the public hearing, prior to the meeting, UVHBA informed City staff that they felt that the documents had changed enough to warrant another public hearing. Thus, in order to provide parties as much opportunity as possible to comment on the item, our attorney indicated near the beginning of the meeting that he recommended that we treat the item as a public hearing and allow any person or entity that wanted to provide comments specific to that item to do so as we addressed that item. As you know, no one other than UVHBA had provided written comments or requested an opportunity to provide comments during the public comment period, so I think it is pretty safe to assume that no one else had an issue.

With respect to whether the Council and public had enough time to review the documents, the Council could have obviously tabled the matter again if the Council didn’t feel like they had adequate time to review the documents, so I assume they felt like they had enough time. Likewise, if you or other members of public felt like they didn’t have time to review the documents, you could have made that comment during the public comment period or directly to the Councilmembers. Also, the IFA and IFFP are fairly lengthy, technical documents, so it is pretty unlikely that someone from the public was taking the time to review the revisions to the documents, but hadn’t made comments at the prior two meetings when this matter was discussed or had any conversation or correspondence with City staff on the matter.

Finally, with respect to meeting with Deann, City staff and our consultants did meet with her to discuss UVHBA’s questions and concerns. This is certainly common considering that UVHBA represents the majority of the individuals of entities that will pay the impact fees and are therefore most likely to have questions or comments regarding the calculation of the impact fees.

Mayor Westmoreland
Eagle Mountain City