PROVO -- After 18 months and multiple trips to the county Planning Commission, the Cottages at Hobble Creek development application from Tracy and Ron McDonald has been denied.
Utah County commissioners voted 2-1 Tuesday against the development because the McDonalds failed to provide enough water to meet the county's requirement and because three of the proposed lots would have driveways crossing Hobble Creek.Commissioner David Gardner said he felt the three lots in question would threaten the stream and that the water requirement had simply not been met.
"All the time and effort aside, the question is does this meet the ordinance?" Gardner said. "If it does, we're obliged to approve it. If it doesn't, then we're obliged to not approve it."
Gardner said while property owners have a right to develop, the right to develop in the critical environmental zone in the canyon is not a guaranteed right.
Commissioner Gary Herbert voted not to support the denial. He said it isn't right to ignore expert testimony given in behalf of the McDonalds.
Tracy McDonald told the commission a hydrologist, who examined the plans for the 39-lot left-fork canyon development, said the water requirement asks for more water than is needed for the area. She said the Army Corps of Engineers has certified that the stream will not be damaged by their development either.
Ron McDonald said the couple invested thousands in a variety of tests and reports covering everything from soil and percolation tests to access and environmental impacts.
Commissioner Jerry Grover said he understands some of the issues have been addressed to the letter of the law but others, such as the issue of whether the development meets a clustering requirement, where homes are built in proximity to one another with open space left in between, are less clear cut.
"This is mostly a line of lots. The clustering requirement is not met," he said.
Attorney Bruce Baird said clustering cannot be required when the land formation does not allow it.
Baird said the McDonalds are prepared to redline the three lots in question and to pledge the water required. He suggested the commission approve the development with conditions that would allow some negotiation and agreement.
"This development meets our ordinance darn, darn, darn close," Baird said. "It technically complies and you don't have the right to demand perfection. It's our opinion there's no basis in law to turn this down."
"This has been back to Planning Commission three times already," Grover said. "The water's always been an issue. To offer water at this late date is a little prejudicial."
Grover reiterated that mountain homes in the critical environment zone are allowed only as a conditional use and the commission must be convinced such a development is in the best interest of the county.
"This issue has caused me more consternation than any other in the years I've served on the commission," Gardner said. "I'm concerned about weighing public access against the rights of private property owners."
He said early on he was not convinced parallel roads in and out of the development guaranteed adequate access in case of a fire. However, he said later that the new roads would provide sufficient fire breaks.
Grover said the health department has decided the watershed would not be degraded by the subdivision's septic tanks and Springville's culinary water supply would not be threatened in any way.