The town's general plan, a growth framework for the next 10 years, emphasizes infill rather than expansion. This effort at prudent land use has led to some zoning conflicts, one of which has been ongoing for the past year.
The area around Aero Drive is a mixture of residentially and commercially zoned properties. Doug Meadows lives in a manufactured home that abuts Jim and Vicki Edmonds Travlin' Auto Repair.
When the Edmonds approached planning and zoning to change their residential property to commercial for their auto repair business, it was requested by the town as well as the Meadows that they make some improvements to minimize the impact on the neighbors.
"We put in a 10-foot-high steel fence so the Meadows wouldn't have to look at our property," Jim said.
The town council approved the zoning change to C3 which is defined as a highway commercial district for the purpose of "accommodating the commercial and business activities that, by their nature, rely upon intense vehicular traffic and are, therefore, most properly located along the state highways with emphasis on providing services for both visitors and residents of Payson."
The Meadows' property, which has been in their family for many years has become a residential island in a sea of commercial property.
Refrigerated trucks at issue
In 2002, the Edmonds decided to rent a portion of their property to refrigerated trucks, such as Sysco. At times, the trucks run and transfer loads early in the morning. This was an unwelcomed change for Doug Meadows who quickly became sleep-deprived from the sound of idling refrigerated trucks.
Meadows went to Town Manager Fred Carpenter and Councilor Barbara Brewer with his grievance.
The Edmonds received a notice of violation dated March 7, 2003, from the Community Development Department's Planning Specialist Gary Butkus. The notice stated that renting space to refrigerated trucks was not only beyond the scope of their business license for Travlin' Auto Repair, but also in violation of C-3 zoning.
"Specifically, you allow commercial trucking on your property for the purpose of overnight parking and transferring of loads. Not only is this activity beyond the scope of your business license, the distribution or transfer of materials is only permitted on property zoned for industrial uses (M-1 or M-2). Even then, a conditional use permit would have to be obtained before transfer activities would be permitted," the citation stated.
The Edmonds subsequently applied for another business license that would permit them to rent space to trucks.
A month later, Butkus sent the Edmonds another letter with no mention of the UDC violation. It was a request that they chip seal their parking area to prevent dust and erosion on their now "rented" C-3 property.
"Because Mr. Garrett (town engineer) feels it's still too cool to apply chip seal, he wants to delay the requirement for the new surface until June 1, 2003. During the interim, you are allowed to continue operations on your property," Butkus wrote.
Truck stop defined
The question arose as to whether what the Edmonds run could be defined as a truck stop on their property.
"To me, a truck stop is a couple of things," Edmonds said. "You've got fuel there. It also means you can come and go as you please. I have a 12 foot high, steel gate -- nothing leaves unless I unlock."
While the Edmonds do not sell fuel, truck drivers and two tow companies have keys to the gate.
"Two towing companies have keys to my gate so they can bring in cars after hours so I can work on them in the morning," Edmonds said. "That doesn't mean I am a junk yard or a tow lot."
The town's Unified Development Code (UDC) has no definition of a truck stop and the Edmonds contend that what they have is nothing close to a truck stop.
Town contradicts itself
According to Zoning Administrator Ray Erlandsen, what the Edmonds have does not fit the definition of a truck stop, but is considered outside storage of trucks, which is permitted in C-3.
"One sees, by direct reference, that outside storage of equipment is outright permitted in a C-3 zoned district by the UDC. In fact, other C-3 zoned districts have the right of this use, and to deny this use of this property would not be consistent with the UDC," Erlandsen stated.
He also cited examples of businesses with outside storage such as Foxworth Galbraith and Chapman Auto Center. Yet these are not refrigerated trucks that run all night.
Refrigerated trucks that arrive in town during the night most likely park on C-2 zoned-property, which according to Butkus' original notice, would be a zoning violation.
Erlandsen's interpretation completely contradicts Butkus' notice of violation. Not only does it allow the Edmonds to continue their business, but they are not even required to obtain a conditional use permit.
According to Attorney Mike Harper, who represents the Meadows, what the Edmonds are doing does violate C-3 zoning, as the town initially stated.
"Our position is that it violates the town zoning ordinance," Harper said. "The town has taken that position and cited the Edmonds, then backed off on their citation."
‘Using a shotgun to kill a gnat'
In what appeared to be an attempt to address this case, Ordinance No. 628 came before the council.
The ordinance read:
"It shall be unlawful and punishable under the provisions of Section 10.99 of this code, for any person to allow, permit or direct the operation or use of any electric, gas powered or liquid fuel motor or engine, including, but not limited to generators, compressors, and refrigerated trucks or trailers between the hours of 10:00 p.m. and 6:00 a.m. in such a manner so as to create sound or noise which is plainly audible at a distance of 300 feet."
The ordinance also included an emergency clause which allows it to be enacted immediately, eliminating the possibility of a referendum that would force a public vote.
The wide sweeping ordinance brought several members of the public, including the Edmonds, to the council meeting to tell the council how the ordinance would adversely affect them.
Meadows went to the podium and explained his position, saying he and his wife hadn't slept in weeks due to the sound and smell of the refrigerated trucks 400 feet away from his bedroom window.
While there appeared to be genuine empathy from the council, they were concerned about the consequences of the ordinance.
Mayor Ken Murphy said the ordinance was like "using a shotgun to kill a gnat."
Councilor Dick Wolfe agreed, calling it a "poorly written ordinance."
Although it was tabled, what the proposed ordinance did do is raise the general issues of what may be exempt from the town's noise ordinance and the consequences of mixed zoning.
If residents don't want spoiled dairy products, where should refrigerated trucks park when grocery stores are closed? Does one have recourse when adversely impacted by a zoning change?
Even Edmonds has empathy for Meadows.
"He wants to sleep," Edmonds said. "He remembers when he could look out and see ducks -- it was a really beautiful place. But he needs to accept the fact that there is such a thing as progress."
Next step -- zoning appeal
It is now in the hands of the Board of Adjustments to figure out with the help of the town attorney if the Edmonds are operating within the confines of C3 zoning.
The two parties are now represented by attorneys. The Edmonds hired former Deputy Town Attorney Tim Grier and Harper will represent the Meadows.
The Meadows requested a zoning appeal to clarify the interpretation of C-3 zoning, which had been scheduled for June 10. The Board of Adjustments job is to either find the zoning administrator correct in his interpretation of the UDC, or incorrect.
The Meadows had evidently requested the hearing be postponed. No reason was given. Several members of the public attended the meeting and wanted to speak, but Deputy Town Attorney Tim Wright told the committee that since neither the Meadows nor their attorney was present, this was unadvisable. However Wright suggested that the public could give the committee a written statement. One man drove over 100 miles to attend the hearing, and was visibly frustrated that he could not address the committee.
The hearing was rescheduled for July 3 at 4:00 p.m. in the council chambers at town hall.