Thursday, March 6, 2008

Utah HB164 Approved By State Senate, But Is Not Retroactive; Powder Mountain And Aspen Incorporations Still Possible

A new town-incorporation bill cleared the Utah Senate on Tuesday March 4th, 2008 and was subsequently signed into law by Governor Jon Huntsman Jr. But that could be too late for Eden residents who have been ensnared by Powder Mountain's designs to become a resort town. Full stories published by the Salt Lake Tribune and by the Deseret Morning News.

For background on these stories, click HERE to review all previous posts on the Powder Mountain issue, and HERE to review all previous posts on the Aspen issue.

The bill, HB164, would require that at least half the residents within a proposed town support such a petition. A mayor and a town council would be elected at the onset of incorporation. It replaces HB466, adopted in 2007, which allowed property owners to draw boundary lines and petition for incorporation as long as they own 50 percent or more of the land and the proposed town includes at least 100 residents. Mayors and town councils would have been allowed to serve as appointed officials until an election two years after incorporation under that law. HB466 set the stage for feuds over proposed incorporations of Aspen, Hideout and Independence in Wasatch County, as well as Powder Mountain in Weber County. The Aspen and Powder Mountain incorporation petitions are still active.

Unfortunately, for potentially-affected residents of Wasatch and Weber Counties, HB164, House-sponsored by District 53 Rep. Melvin Brown (R-Coalville) and floor-sponsored by District 27 Senator Dennis Stowell (R-Parowan), provides them very little help in combatting the incorporation efforts they face. A last minute attempt by Senator Allen Christensen (R-North Ogden) to make HB164 retroactive failed due to the staunch opposition of House Speaker Greg Curtis (R-Sandy), who claimed that retroactivity would punish developers who applied for incorporation under HB466. With the failure of retroactivity, the Aspen and Powder Mountain petitions will be adjudicated under the previous bill's looser ground rules rather than the new law's more stringent standards.

Senator Christensen gave his regrets to a group of residents from Weber County's Eden who had gathered on Capitol Hill. "This legislative body made a mistake a year ago," he said. "I humbly apologize. I voted for that bill. I had no idea what I was voting for".

Eden resident Darla Longhurst-Van Zeben said taxpayers in her neighborhood would be under the thumb of a mayor and a town council appointed by Powder Mountain developers. "Our sense of community was shattered a few weeks ago when we found out we were going to be part of Powder Mountain". She fears city officials selected by the developer would sink the proposed town into debt to pay for resort-town infrastructure and then raise taxes on homeowners to erase the red ink. That notion - taxation without representation - makes the present law unconstitutional, Longhurst-Van Zeben contended. The Weber County Forum, in this post, criticized HB164 as "the coward's way out" because it risks leaving at least 150 local citizens disenfranchised. The Ogden Valley blog continues to focus almost exclusively on this issue, as well.

If the Weber County Commission approves the Powder Mountain incorporation, Eden homeowners will go to court, said resident Jim Haley. "We're going to wait and see what happens," he said. "If the commission approves it, we're ready to file an injunction". In a separate story, the Salt Lake Tribune reported that on Tuesday, the Weber County Commission decided to delay the petition to incorporate Powder Mountain as a town, which would include the community of Eden. Commissioner Craig Dearden said he wants to see if the owner of Powder Mountain, Western America Holdings, will compromise with Eden residents who oppose being included within the proposed boundaries.

Powder Mountain applied for incorporation in January 2008. The developers said they filed the petition out of frustration with Weber County's reluctance to approve proposed luxury homes, golf courses, shops and hotels. Dean Sellers, who applied for incorporation for his proposed town of Aspen in the Wasatch Valley in November 2007, is now appealing the rejection of his petition to the Utah Supreme Court for the second time. Sellers is arguing that his petition should be given priority because Wasatch County's corrected annexation petition for the Storm Haven subdivision is actually a revision, which makes it a new petition, rather than a correction, which simply changes the original petition.

Prognosis: I think the Wasatch Valley folks have a good chance of defeating Dean Sellers and his Aspen petition. While they are not nearly as numerous or as influential as the Ogden Valley folks, there are two important differences. First, the Aspen resort does not exist yet; as such, there is no momentum to be generated by the power of incumbency. Second, the petitioner, Dean Sellers, has broken nearly every public relations rule-of-thumb known to mankind, consistently wielding a hammer. He's pissed off nearly every local. The Utah Supreme Court will undoubtedly factor that into their final decision, just as they likely did the first time.

I'm not quite as optimistic about the Powder Mountain situation. While the Ogden Valley folks are more numerous, influential, and better-organized, with two prestigious blogs sounding the alarm, the Powder Mountain operators seem to have avoided the P.R. mistakes made by Sellers. They consistently stress the benefits and try to distract the residents of Eden who would be affected by throwing them bones. And since Powder Mountain is an established resort, this confers the momentum commensurate with the power of incumbency. In addition, the Weber County Commission seems to be wavering in the fight against Powder Mountain, now speaking in terms of merely "delaying" rather than fighting. If their own county commission isn't fully engaged in the fight, this may be too much of a hurdle for Ogden Valley residents to overcome.

Nevertheless, if the Ogden Valley residents are resolved to see this through, they should by all means continue the struggle. Even if they fail, they would get a better deal from Powder Mountain than they would by retiring from the field of battle at this point. I continue to wish them well.

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