PROCEEDINGS OF THE CITY COUNCIL OF SALT LAKE CITY, UTAH
TUESDAY, DECEMBER 21, 1982
THE CITY COUNCIL OF SALT LAKE CITY, UTAH, MET IN REGULAR SESSION ON TUESDAY, DECEMBER 21, 1982, AT 5:00 P.M. IN ROOM 301 CITY AND COUNTY BUILDING.
ON ROLL CALL THE FOLLOWING COUNCIL MEMBERS WERE PRESENT: RONALD J. WHITEHEAD, EDWARD W. PARKER, GRANT MABEY, SYDNEY R. FONNESBECK, PALMER DEPAULIS.
Mayor Ted L. Wilson was present at the meeting.
Council Chairperson Sydney R. Fonnesbeck presided at and conducted this meeting.
Pledge of Allegiance.
Approval of Minutes:
Councilmember Parker moved and Councilmember Mabey seconded to approve the minutes of the regular meeting of the Salt Lake City Council for the meetings held Thursday, December 9, 1982 and Tuesday, December 14, 1982, which motion carried, all members present voting aye, except Councilmember DePaulis who was absent when the vote was taken.
(M 82-2)
PUBLIC HEARING
Public Utilities in Residential Districts.
RE: An ordinance amending Section 51-6-8 of the zoning ordinances concerning public utilities in residential districts.
A public hearing was held before the Salt Lake City Council at 5:00 p.m. to discuss this matter. Craig Peterson, Director Development Services, addressed the Council and stated that a year ago the Planning and Zoning Commission established a policy specifying two changes in terms of handling micro-wave and telecommunication facilities on Ensign Peak; 1) a recommendation that a corridor be established to prevent the proliferation of the telecommunication devices and 2) leasing property to telecommunication companies for placement of these facilities rather than selling the property.
Mr. Peterson outlined on a map the proposed position of the corridor for placement of the telecommunication facilities and the sites that have already been sold prior to the Planning Commission recommendation to lease property. Councilmember Fonnesbeck asked if the Council was being asked to adopt an ordinance requiring that telecommunication companies must lease property rather than purchase property, to which Mayor Wilson stated that the intention was to sanctify this policy by legislative action. He further stated that the Planning and Zoning Commission and executive branch has followed this policy but it had never been put in formal form. Mayor Wilson stated that the reason the Council was being asked to adopt the ordinance was because of the concern about the exploding future of micro-wave and other types of telecommunication. He further stated that the concern was with regard to the impact that proliferation would have on the foothills and other areas around the City. Mayor Wilson stated that he feels the best way to control these facilities is to have City-owned property that is let out for this purpose, controlled by the City through ownership and arrangements made through lease documents or contracts.
Mayor Wilson further stated that there is presently litigation involving whether or not public utilities, as certified by the Public Service Commission, have a right to condemn property. He stated that in his opinion the case is not clouded by the Council’s action to adopt this ordinance and will not affect the status of the litigation. Councilmember Parker stated that on page two of the ordinance it reads “... It is determined that due to certain peculiar conditions, the facility could not be located outside...” and asked what the peculiar conditions were, to which Mayor Wilson stated that the reason the zone was established was to try to isolate a site that had good transmission abilities, some visual relief from the City, and also that aspects of terrain and slope were taken into consideration which would be those particular conditions that would qualify the location to be a good site not only for the telecommunications industry but for the public as well.
Councilmember Mabey asked if there were a possibility of establishing any other site beside this particular one, to which Mayor Wilson stated that he felt the request for a telecommunication site would have to be specialized in nature or be established after the current zone is saturated. He stated that consideration would be given to companies requesting specialized sites. Tom Uhland, representing Skaggs Telecommunications Service, stated that he would strongly support the ordinance in its present form. He stated that there are a lot of technical reasons that radio sites need to be controlled that have been addressed before.
He further stated that as sites proliferate there becomes a self-limiting technical effect if certain precautions are not taken on an engineering basis. He stated that he feels that if the ordinance is not passed and adhered to in all cases including public utilities and pseudo public utilities, that there will be problems in the future. Mr. Uhland stated that there are currently some problems on Ensign Peak with regard to radio interference. He stated as an example the telephone company contributes to that interference because of the nature of their site. He encouraged the Council to adopt the ordinance. Robert S. Campbell, Jr., attorney for Industrial Communications, addressed the Council and stated that his client is a utility within the State of Utah which is authorized to conduct tele-transmitter facilities and sites within central Utah specifically and within Salt Lake County in particular. He stated that the operation and business of Industrial Communications is the operation of mobile paging and telephoning. Mr. Campbell stated that they were in competition with certain other regulated utilities and does have authority and a right according to state law and the Public Service Commission to provide public service. Mr. Campbell stated that Industrial Communications is a taxpaying entity within the city and is qualified to speak to this issue.
Mr. Campbell stated that he felt the Council should maintain as much flexibility as they can. He stated that he previously represented the State of Utah, the State Road Commission and other state agencies that have an interest in exchange, acquisition and conveyance of real property and real property interests. He stated that as legal counsel he always maintained as much flexibility in these areas because it is difficult to anticipate all the circumstances that may arise over the course of government operation of its functions, facilities, properties, and assets.
Councilmember Fonnesbeck stated that if the Council decided to uphold the policy of leasing property that the City would have more flexibility. She stated that if the City leased property they could decide to sell, however if the property is sold the decision cannot be reversed. Mr. Campbell stated that his understanding of the proposed ordinance is to amend the ordinance to provide that all properties in this particular zone shall be leased and not sold or conveyed in fee simple interest or any other interest.
Mr. Campbell stated that under the proposed ordinance the City will have to lease the property whether they want to or not. He stated that the policy has been adopted by the Planning Commission and the executive branch with regard to the sale of property in fee simple interest. He stated that in the future circumstances may give rise when the City will want to sell property within the corridor. He gave two reasons that could occur 1) the Council may want to include this property in the taxbase, and 2) to allow a taxpayer to purchase property for tax purposes.
Mr. Campbell stated that the City may presently look at the cases on an ad hoc basis to determine if it is appropriate to sell or lease a piece of property in the public interest. He further stated that he felt the City should not tie their hands in this matter. Mr. Campbell stated that there is pending litigation relating to the passage of the proposed ordinance because his client has condemned one of the tracks of property within the corridor. He stated that this matter would probably not be before the Council if it were not for the pending litigation.
Mr. Campbell stated he felt that the City administration was trying to manufacture or manipulate the ordinances in the midst of this litigation. He stated that he felt the Mayor was correct in the fact that the litigation will not be influenced by the passage of the ordinance, however he stated that it would place the City in direct conflict with state statute. He stated that if the court finds that a utility engaged in operation for the public use can condemn property there will be a direct conflict between a City ordinance and a state statute. He stated that the Mayor should have the flexibility to sell the property under terms and conditions to ensure that the property is utilized solely for the purpose for which it was sold.
Mr. Campbell concluded by stating that the proposed ordinance was not in the public interest and that the proliferation of facilities can be handled on a case by case basis. He stated that if the Federal Communications Commission regulates and authorizes a company to broadcast from a certain point at a certain frequency and the state Public Service Commission authorizes a particular utility to engage in that business, additional telecommunication sites within Salt Lake City will be added; the only question would be where it would be located.
Councilmember Fonnesbeck stated that regulations outlined in the proposed ordinance would only be applicable to a specific utility such as: gas, electrical, telephone, television or radio service utility located in a residential district by necessity and the use of anything other than a utility, as specified, is not bound by the proposed ordinance. She asked if these facilities are located outside a residential area would it be bound by the proposed ordinance, to which Mr. Peterson stated that it would not.
Mayor Wilson stated that he felt the City was not trying to manipulate the ordinance by proposing this amendment. He stated that he felt the City has to have a clearly thought out procedural position to regulate these types of facilities. He stated that in order to be fair to everyone in the future the ordinance should be adopted establishing the policy of the City. He further stated that if the proposed ordinance is not adopted Mr. Campbell could argue in court that the Council disagrees with the executive branch and therefore the Mayor may sell the property if he wishes; that would work to the benefit of his client allowing the court to say that this kind of a condemnation is rightful and proper.
He stated that he may have been wrong by stating that he did not feel the Council’s action regarding the adoption of the ordinance would affect the case, he stated that this has been an orderly process in which the administration has attempted to be fair to all people and feels that if the Council adopted the proposed ordinance it would be important to the City’s position and case.
Mayor Wilson further stated that Mr. Campbell’s examples of allowing taxpayers to have advantages to buy rather than lease or allowing the property to become a part of the City’s tax base is not valid. The City can recapture their portion of the tax base in the lease fee. He stated that it does not disadvantage the City but may disadvantage other governments because it would eliminate a tax base and may have a collateral effect. Mayor Wilson stated that he feels the purpose of this government is not to provide tax incentives to taxpayers or individuals and that Mr. Campbell’s reasons were not overwhelming as to why it would be an advantage to the City. He agreed with Councilmember Fonnesbeck’s analysis with regard to leasing the property first and making decisions regarding sale later, however Mr. Campbell is correct in saying that you can place deed restrictions and reversion clauses on the property.
He further stated that he felt Industrial Communications has a legitimate interest in presenting their case and feels that this question that will eventually be solved by the courts of this state. Mayor Wilson stated that he feels the Public Service Commission does not have the authority to deal with all the questions that relate to these kinds of facilities. They deal with the technical aspects of utility regulation and not the site, sound, land use and other aspects relating to these kinds of facilities. He further stated that he feels the City has a good case before the court.
Councilmember Fonnesbeck asked Mr. Peterson to explain what terms would be provided in the lease, to which he replied that he had been serving as a member of a committee that reviews lease agreements. He stated that it was the feeling of the committee that the length of the lease be five years, however, the committee felt that period of time was too limited and the discussion revolved more around 20 to 30 years.
Councilmember Mabey asked if the term of the lease rental price exceeds the selling price that would be applied to that particular parcel of ground, to which Mr. Peterson stated that the committee did not address that issue, he further stated that a policy meeting was held in Mr. Blaine's office, however he was not aware of what was discussed during that meeting. Mr. Campbell stated that he feels that Council action taken with regard to this proposed ordinance will not have an impact on the pending litigation. He stated that he addressed the Council not for the purpose of attempting to place the Council in a position of being compelled to support the Mayor.
He stated that the issues of the case are clear and that the plaintiff, Industrial Communications, wishes to condemn the property and that the City does not want to sell the property. Mr. Campbell stated that in his opinion the adoption of the proposed ordinance will not affect the case, however litigation is pending and the adoption of the proposed ordinance places the City in conflict with state law.
Mr. Uhland stated that beside the fact that the FCC licenses the facility and the Public Utility Commission grants the utility status, Industrial Communications is not the only utility that provides that type of public service and that is an issue that cannot be decided tonight. He feels the FCC does not have the resources or the manpower to police radio sites. He stated that there are several radio sites on the west mountain that are causing interference problems and that there are no attempts to take engineering solutions that need to be taken. He stated that he questioned whether anyone but the City would care what happens once the site is out of the control of the City; the City needs to maintain control. Mr. Uhland further stated that the terms should be stated and enforced in the lease agreement.
Councilmember Whitehead moved and Councilmember Parker seconded to close the public hearing, which motion carried, all members present voting aye. Councilmember DePaulis stated that he found it difficult to make a decision on this issue without the advice of the City Attorney.
Councilmember Parker moved and Councilmember DePaulis seconded to refer this item for discussion to January 4, 1983 at the 5:00 p.m. policy session, and to consider adoption of the proposed ordinance amendment at the regular Council meeting on January 4, 1983 at 6:00 p.m., which motion carried, all members present voting aye, except Councilmember Fonnesbeck who voted nay.
(O 82-63)
The meeting adjourned at 6:00 p.m.