FARR WEST -- After a scolding from its own attorney, the city council this week granted Anthony Marler permission to build an assisted living facility.
The action reversed the council's ruling earlier this year that the center could not be built because it was on land the council designated as wetlands.
Attorney Jody Burnett advised the council in no uncertain terms that the city must permit the project. The council then voted unanimously to reconsider and approve a conditional permit and site plan for Seasons Assisted Living.
Marler is suing the city for denying the permit three months ago because of concerns that the site might be wetlands and construction would cause flooding in the neighborhood.
But Burnett laid out for the council that state law dictates that the city cannot designate or treat any land as wetlands unless the Army Corps of Engineers has already required a wetlands permit of Marler, and it has not.
"We just don't have that authority, much as you would prefer," he said.
Marler spent nearly two years complying with city ordinances as he attempted to gain approval for a facility that will house the elderly and people with disabilities. Marler filed a federal lawsuit earlier this month citing the Fair Housing Act.
Four engineers, including the city engineer Kent Jones, told council members in May that there was no reason Marler could not build his facility on the property he owns at 1979 Heritage Drive. In fact, engineers concluded that the project will actually reduce the amount of stormwater because of a detention pond on the property, Burnett said.
But Councilwoman Ava Painter argued that a high-water table is a constant issue in the city.
"We are lucky we aren't completely under water like Plain City has been," she said, adding that "this is not a back-door rejection of this facility, the property has always been a wetlands."
That's not the way a judge or jury might see it, Burnett said. He said it would not take much for them to conclude that the wetlands and flooding issue is a subterfuge for the city to deny housing for the elderly.
And such a ruling would have severe consequences for the city, he said. He pointed out a case in Boise, Idaho, in which a county lost a similar suit and is now filing for bankruptcy because of the $4 million awarded.
"I speak from experience from having been kicked in the teeth in the trenches out there in trying to defend those kinds of cases," including a current case in Draper, he said.
City Attorney Ryan Shaw spoke up and said that Marler could claim more damages the longer they don't approve his permit.
"The damage meter is running. We are asking you to do something tonight to stop it," he said. Shaw said he did not immediately know how much that could be as of Wednesday night.
Meanwhile, the residents whose outcry led to the denial are left waiting to see what happens to their homes.
Carol Campbell, who lives next to Marler's property, was disappointed and surprised that the council's hands were so tied. She said she's seen water lap up against her driveway many times.
She added that she used to wonder, when she would see stories on the news about homes sliding down hillsides or sinking, how anyone could have been permitted to build there. "Now I know," she said.