Saturday, February 16, 2008

Experiencing Another "Utah Epiphany"

A short essay on political cowardice: So-called "remedial legislation" will still leave aggrieved Ogden Valley citizens politically disenfranchised

“We don’t want to deal with retrospect. There are numerous incorporations already going forward, and to roll back the clock would put us in a litigious situation.”

Sen. Kevin Van Tassell, R-Vernal.
Standard-Examiner
February 16, 2008

“If the law supposes that, the law is a ass, a idiot.”

Mr. Bumble
Oliver Twist - Dickens
1838

“Lawsuits are likely regardless of what happens, and the potential fallout from House Bill 466 last year needs to be stopped. Just because we opened the door and the animals got out, that doesn’t mean we can’t gather up the animals and put them back in the barn,”

Sen. Allen Christensen, R-North Ogden
Standard-Examiner
February 16, 2008


Hoo-boy, gentle readers. After perusing the Standard-Examiner this morning, we're having one of those startling flashes of clarity that we call a "Utah Epiphany." Here we've been naively working like madmen over the past few weeks, trying to muster support for Senator Stowell's (R-Parowan) SB-25, which we believed to be curative legislation for the evils of last year's HB-466; and now we learn -- in this morning's Jeff Demoss story -- that the current version of this bill, which passed in the senate yesterday by a 26-1 vote, is not designed to operate retroactively.

Yesiree, folks, those gutless wonders in the senate passed a remedial bill alright; but it won't do anything to help those folks in Ogden Valley who stand to live for at least two years without elected town representation -- under the dictatorship of corporate Powder Mountain developer appointees. Senator Allen Christensen made a valiant effort to add a retroactive provision to the bill, according to today's story, but his cowardly Senate colleagues apparently turned him down flat.

Our take on the solution to the current political predicament is of course very simple. It was the Utah State Legislature who caused this problem; and it's the responsibility of that same legislative body, (the entire body, including the senate,) to fix it. The solution seems fairly uncomplicated, we believe, if we can rely on the accuracy of today's story. The House of Representatives can pass one of the two other pending House bills which do contain retroactive provisions (HB-413 or HB-164,) and send one of them on to the Senate. Alternatively, the House could kick back a House-amended SB-25 (with retroactive provisions.) Whatever they do, we hope representatives like Gage Froerer (R-Huntsville) will have the courage to stick to their guns. Otherwise it will be, once again in Utah, the "little people" who are left holding the bag.

As to the threat of developer litigation, by the way, we'll offer that we are not impressed. And to our gentle readers we ask, in the event that litigation will be the inevitable result of the legislature's "doing the right thing," how, exactly will any developer prove damages? Will Utah developers with pending incorporation petitions argue that town incorporation is a vested property right? We believe it's pretty clear that town incorporation is a political "privilege," and not a "right." And even assuming that a pending incorporation petition is a vested and valuable property right entitled to protection in Utah courts, how would a court deal with the problem of the political disenfranchisement of those citizens who have been unwillingly dragged into new municipal entities at the whim of neighboring property owners, because of the unintended operation of an ill-conceived law that everyone (including legislators in the State Senate) seems to believe to have been flawed from the outset?

Senator Christensen is quite right, of course. There will be litigation regardless of the manner in which this situation shakes out in the legislature. And in the event of litigation we'll put our money on the litigants who have ALL the equities on their side, i.e., the 100 or so people of Ogden Valley, whose own property and political rights are being trampled by one greedy developer who readily admits its incorporation petition action is tactical, cynically intended to sidestep Weber County regulatory authority and "...take complete control of their own destiny". [Paragraph 4]

If there is to be litigation, bring it on. In the meantime we call on all members of the Utah legislature to check out their own moral compasses. We think it's time to "gather up the animals and put them back in the barn," as Senator Christensen suggests.

The State Senate's most recent inaction leaves your blogmeister with a profound sense of disgust this morning. It's difficult to believe that this situation is happening in America. Of course this really isn't America, good readers. It's Utah. We're again experiencing another Utah Epiphany, as we said.

And what say our WCF cyber-folke about all this?

15 comments:

david s. said...

Let's give the Senate credit for moving on this issue.

But is sounds like the House bills are better.

The "litigation" issue is a red herring.

1. There would be no grounds for litigation. Government changes land use rules all the time.

2. Given the monstrous nature of some of these projects, even if they were litigated, it would certainly be worth it.

Curmudgeon said...

It pains me to have to say this, but the Senate majority may have a point here. I have a real problem, regardless of the issue, with ex post facto legislation [retroactive legislation].

The Founders wisely banned Congress from enacting ex post facto laws... that is, making illegal on Tuesday what you did on Monday. Declaring something retroactively illegal. Agreed, they had in mind for the most part criminal conduct, not regulatory statutes like those governing the rules for establishing new towns.

Nevertheless, the whole practice of retroactive legislation is, I think, dangerous on its face. Whether it involves the President demanding retroactive immunity for telcoms' engaging in spying on American's phone conversation, or whether it involves the Utah legislature retroactively changing the rules for town founding for those who followed those rules and are well along in the process of establishing new towns.

Those arguing for retroactive alteration of the town founding rules seem to be arguing something like this: "you people who've begun the town founding process [including those who've completed it like the resort village outside Zion National Park, or is that to be exempt from the retroactivity?], you should have known that when we passed the disaster that is HB-466, that we didn't know what the hell we were doing, and that we'd certainly be coming back to fix our idiocy sooner or later, and so you should not have done what the law specifically told you you could do." That makes even less sense to me that the Utah legislature's developer-wing [i.e. the Republican majority] usually makes.

Making Powder Mountain a town in order to escape the County's zoning authority is a very bad idea. But the legislature passed a law making that perfectly legal to do, and people have acted under that law. I'm not sure that retroactively making what is now legal illegal is fair policy, or wise policy, or will be defensible in court. Ex post facto legislation is as a rule a very bad idea.

danny said...

Curm,

Ex post facto refers to criminal laws, not to land use regulation.

If the city wanted to, they could rezone your house to make that zoning more restrictive. Ex post facto would only apply then, if they tried to prosecute you for the fact that you violated the new law IN THE PAST. But you would still have to comply, IN THE PRESENT.

You ex post facto people here and in the legislature don't know what you're talking about.

Why argue for land rape that you disagree with, by using arguments about which you have little knowledge?

danny said...

Let’s say the city last year, passed a law saying you could have a large shed in your backyard, but you had to get a permit.

So you spent some time looking at Tuff Sheds and filling out the city’s paperwork. Now let’s say they change their mind and say no, we don’t want to let folks put big sheds in their backyards after all and they change the law again.

Ex post facto would be where they go prosecute the people for putting up the sheds while it was legal. But making them take the sheds down would not be illegal or ex post facto.

In particular, telling you that you can’t have the shed you were planning after all, would not be ex post facto.

You’re right. Ex post facto is a bad idea. But passing a law to stop these town incorporation ripoffs and making it retroactive is not ex post facto as the contractors would have you believe.

You can’t win these sorts of things if you accept these lying SOBs arguments in the first place.

Curmudgeon said...

Danny:

I'm well aware of the distinction between criminal statutes and regulatory ones, as noted in my post. However, the examples you use seem week to me. Zoning, for example. Yes, the city can change the zoning on my property, but if I am, say, already operating a business on my property, and they change the zoning to residential, generally the rules provide for "grandfathering in" existing uses.

As for the shed example, what you must do to create a new town under the existing law involves a great deal more expense and rule-following than getting a permit for a shed. Does not seem to me the examples [shed permit vs town founding] are comparable.

My objection to retroactive changes in the regulations are that they are always unwise, because they set precedents that should not be set. The legislature should correct the mess it made by making sane and sensible rules for town-formation, starting now. But changing them retroactively for those already well along in the process still seems ill-advised to me. It is as ill-advised as making something that was unauthorized at the time retroactively authorized... as our City Council did recently acting as the RDA Board.

One of the major purposes of such legislation is to provide reliable predictablity for commercial operations, so that business people will know, and can rely on, what the law both permits and requires, so they can plan and act on that basis. Retroactive alterations in regulatory requirements necessarily undermines that predictability and do undermines much of the purpose of regulatory legislation.

So, while I agree that making Powder Mountain a town to avoid county regulation is a very bad idea, so is legislation that makes something retroactively illegal, or that makes something retroactively legal. That is never wise policy, seems to me. My objection is not that what the House wants to do is necessarily illegal itself --- as everyone agrees, that will have to be determined in court. My objection is that it is unwise policy.

danny said...

Remind me then, Curm, to never put you in charge of a ship.

You don't seem to be able to countenance something called a "course change."

Gee, I had planned to invest in something, but when the government changed the law, now I can't.

So, according to you, the government should never change anything. It might disappoint someone. Sheesh.

With due respect, it's attitudes like yours that make the good guys so impotent.

Curmudgeon said...

Danny:

Want to argue the wisdom of retroactive legislation, I'm fine with that. But if what you want to do is set up straw men to knock down, I think I'll pass.

At no point did I suggest in any way, that "the government should never change anything." In fact, if you read my post above, I argued that changing the awful existing law would be a very good idea, starting now.

The only point I argued, with which you disagree, is that retroactively changing regulations [in this case for town formation] is not wise policy.

But if you want to play "set-em-up-knock-em-down" with straw men, from now on, you'll have to play by yourself.

PS: I do agree it would not be wise to put me in charge of a ship. Landlubber here from way back.

dan s. said...

Curm and others:

What we're dealing with here isn't just your average change in land use regulation. Incorporation of a new town goes way beyond mere land use (even if the motivation is to get around county zoning requirements, and the developers want to spin this as a property rights issue).

To create a new town without the consent of its residents, and without giving them any voice in choosing their new elected officials, is undemocratic and unamerican. I'm no lawyer, but I strongly suspect that if this incorporation moves forward, the residents will have excellent legal (constitutional) grounds to challenge the process. That may be one reason why Christensen said there will be lawsuits no matter what happens.

The legislature needs to do whatever it can to stop this attempt to disenfranchise our citizens.

Curmudgeon said...

Dan:

You wrote: To create a new town without the consent of its residents, and without giving them any voice in choosing their new elected officials, is undemocratic and unamerican.

No argument from me on any of those points. But the question is, is doing that illegal... in Utah? Beats me. Ought to be, but is it? I have no idea but, sadly, I would not be surprised to discover that it is not.

Minor Machman said...

Crum and Dan, very interesting debate. Both sides clear. But when it comes to HB 466 and those who passed it, one has to consider the intent of the legislation. It was "presented" that "citizens are having a hard time getting County services" and therefore we need to make this very easy for the citizens and property owners to provide those services for themselves.

Supported by the League of Utah Cities and Towns and the Association of Counties repleat with Realtor Association "people" and backed by them no doubt.

"Chris Kyler, CEO of the Utah Association of Realtors, sounds quite animated as he counts off the many members of his organization who hold high office in the state. "I've got people
who are on county commissions, mayors, state senators," Kyler says. "Our lieutenant governor was president of our state association about 20 years ago. Our people are involved in the parties, too. We've got precinct chairs and vice chairs and county delegates throughout the state." Governing Magazine.

I live in Ogden Valley where we get virtually no County "services" except what we provide for ourselves. There have been a number of requests for annexation into Huntsville Town, for example, but very few have been passed "by a vote of the citizens" after carefuly weighing the costs versus benefits. Such is the normal bill of fare it seems to me...that citizens have a say in such decisions as a routine one way or the other.

HB 466 was "sold" based upon false premises and faulty logic to both the Senate and House both of which are corrupted by Realtor Association/Developer money. The "gatekeepers" were intentionally changed from the rightful residents to the wealthy property owner/developers. It was pusillanimous and iniquitous without any thought given to anyone except the developers.

They took the laws designed for Cities and "redlined" out all the things the developers did not like and which granted ironically "private property rights" to residents. Then to add insult to injury and show off just a little bit the power they have, these bastards added the parts about how Town government could only be elected from a list provided by these nere-do-wells. Just to let the little people know who was really in charge. That my friends is "malice".

I can find no evidence that HB 466 ever went before the Utah Constitutional Review Commission for example. Why? Roger Tew is on the Commission and also a lobbyist for the Utah League of Cities and Towns I am told - who uses our tax money to lobby against us taxpayers. So does the Association of Counties, by the way, and they "have their members positioned there also."

This is totally against private property rights, a mantra the Realtor Asssociation loves to pronounce at every propaganda opportunity. And it is totally against our US Constitituion 14th Amendment, Equal Protections Clause, at a minimum. "All persons who are similarly situated or circumstanced are deserving of equilent treatment." Justice Brennan, Phyler vs. Doe.

If we vote for the right people for a change and institute an independent Ethics Commission, much of this nefarious activity could be "nipped in the bud." And those behind it could be removed from office and appointed positions etc. There should definitely be a serious legal investigation into all the participants who cooked up this scheme and there should be prosecutions which follow. If not new laws strengthening anti- corruption and graft laws if any actually do exist in Utah?

But hey that's just my opinion. MM

Rebel With a Cause said...

The proposal made by the potential developer of Powder Mountain is only a proposal at this stage,isn't it? Seems to me it could be stopped by the State Senate bill just passed, or the bill in the House,at least.And it would be nice if Senator Valentine and Speaker Curtis would refrain from voting because if their conflict of interests with developers. No one has given the proposal the approval to proceed, yet. Just meeting with land-owners involved, in an attempt to win them over,doesn't constitute too much progress having been already accomplished. If they were told, "Sorry, we must say, no, you will have to comply with the ruling of the Planning Committee," They, then, would get their town,
probably, their neighbors would be happier, and if they have to build another road up there, as a consequence, they would be doing themselves a favor in the long run, because that present road is too steep and hard on brakes and transmissions.

ozboy said...

Greg Curtis, Speaker of the Utah House of Representatives, noted gas thief and right hand man of the disgraced Nancy Workman has vowed that he would not let the developers who are sliding through this mile wide loop hole be hurt by any retroactive legislation thus fulfilling his role as their designated lap dog in Utah Government.

Mr. Curtis' credential are sterling. In addition to being the gate keeper of all Utah legislation he is the law partner of Hutchings, Baird and Daniels. They are the most powerful law firm in the state in the area of Land Use. Daniels is a long time third district court judge, and Hutchings is a partner in Anderson Development, the biggest and most powerful developer in the state. In addition, their law firm represents most of the other large developers and has been known to be extremely aggressive and brutal in beating down and intimidating any common folks who raise objections to the actions of their developer clients.

This law group is also close to John Valentine the President of the Utah Senate and law partner in another power land use law firm in Provo.

The common denominator seems to be that they are all graduates of the BYU Law school.

They, along with Mansel the former Senate boss and major real estate tycoon, and numerous sycophantic law makers in the real estate and legal fields, have in the last 5 years completely gutted the Utah laws of most protections society has in land use laws. They have opened the gates to themselves and their cronies and re-written the laws of the land to specifically benefit themselves at the expense of the common people. Then to add insult to injury they make a very convincing case in each instance that the changes were made for the benefit of their constituents the common man and property owner!

Reminds me of the setup for a Capra movie.

Minor Machman said...

Crum, ent al, WACOG = Weber Area Council of Governments and is composed of Mayors from all the 27 or so Towns and Cities within the County. It is my understanding that a group of these gentlemen also divvy up the RAMP Grant money also.

From a previous Riverdale Town Council Meeting, for example: "Mayor Jones explained he feels his charge in WACOG is to represent his community. He stated WACOG also considered dividing up annual Community Development Block Grant (CDBG) funding. He stated when it comes to CDBG funding, Ogden City is known as an entitlement city, and automatically receives a specified amount. He stated the rest of the cities in Weber County are not entitlement cities, and between $700,000 - $900,000 has to be divided up annually amongst the municipalities and WACOG has to come up with the criteria for division. He stated there was actually $2,300,000 in requests for the actual $900,000 received.

Mayor Jones explained the discussion he had on the recommendation as to how to divide up those monies. He stated he questioned as to why there is an existing rating and ranking procedure that is totally ignored. He stated he had tried to point out it would be better if each entity took a turn to receive major funding every eight years, thus resulting in a worthwhile lump sum. Mayor Jones stated the federal monies have a lot of associated strings, which are particularly cumbersome in the area of bookkeeping. He stated small amounts may simply not be worth the hassle in that they do not make it worth their time to administer. He stated he feels once a community has received monies for a specific use, they should go to the bottom of the list until others are able to do the projects they want. He stated he also raised concern as to multi-year projects, wherein funding is committed for several years.

"If you have questions regarding reporting requirements for your RAMP grant please
contact Farley Merkley, Internal Auditor for Weber County at 801 3998414.
Thank you,
Weber County RAMP Committee"

"Submit Applications to:
RAMP Tax Advisory Board
% Weber County Commission Suite 360
2380 Washington Blvd.
Ogden, Utah 84401"

So you see we have a "Weber County
RAMP Committee and a RAMP Tax Advisory Board" But I believe they are apppointed by the Commissioners from the WACOG but that is just my guess.

Minor Machman said...

RAMP Dist. cont'd... The Standard Ex. reports, "The voters approved the tax -- which is due for renewal every eight years -- and volunteer, unpaid citizen committees make the decisions about who gets what and how much.


It's true, the Standard-Examiner Editorial Board urged passage of the RAMP tax in 2004. We were, of course, pleased when a majority of voters agreed with us. And we continue to be impressed with the way the RAMP grants are reviewed and bestowed on worthwhile groups and projects. For example, a county auditor follows each project from start to finish, verifying that the money is being spent, and that it's being spent precisely how the grant request said it would be spent.


Applications for RAMP grants are accepted from every conceivable entity. (See the rules for application and a list of the projects funded so far at www1.co.weber.ut.us/ramp/index.htm.) Then the applications are reviewed by county attorneys, and those that conform to the law regarding eligible recipients are passed along to the volunteer committees. The unpaid committee members then divide the applications by category, and they begin the review process by which they will eventually award grants of all sizes."

MM

gotta hide from these mobsters said...

Ozboy, funny you should mention Curtis and Valentine. This is part of what I have been trying to get people to understand...
2006 "Campaign" funds accepted:

John ValentineRealEstate/developer
$15,000 Total $135,088
Greg Curtis RealEstate/developer $52,366 Total $309,129
Neiderhauser RealEstate/developer
$164,500
Total $253,640

Neil Hansen Real Estate/developer
$3,474
Total $20,495

Hmmm?! I am working up a complete analysis based upon 2006 data from followthemoney.org

It is looking like Realtor, and developer finance and construction money has corrupted at least half our legislature as of 2006 and probably even more so in 2007. Details forth coming. The 2008 data will not be available for some time.

Do ya think these guys could all be part of a BYU "Skull and Bones" Society or something?

Chris Kyler, received his Bachelor of Arts degree in political science from Brigham Young University, and his Juris Doctor degree from the J. Reuben Clark Law School. Chris is not only a full-time lobbyist, but is also serving as General Counsel and CEO for the Utah Association of Realtors. In the Firm's government relations practice, Chris is responsible for creating and managing the legislative advocacy efforts of his clients, including legislative drafting, campaigning, fund-raising, PAC money disbursement, and lobbying.

Michael Ostermiller, obtained a Political Science Degree from the University of Utah and was awarded a scholarship to attend law school at Brigham Young University. Mike Ostermiller is both a partner in KKO Lawyers, but the CEO and Chief Lobbyist for the Greater Ogden Area Association of Realtors. Before coming to KKO Lawyers, he was an attorney with the St. George law firm of Barney & McKenna. As a Lobbyist working daily in the real estate industry, Mike is extremely involved in local and state legislation. He has served as CEO for the Salt Lake Board of Realtors since August 2002.

Bryan Kohler's duties include serving as Executive Vice President, directing the 14 person professional staff and managing the budget. He also directs the board's Governmental Affair Committee that is responsible for developing cooperative relationships with local and state officials. Prior to his appointment with the Salt Lake Board, Bryan was a practicing attorney with Gallian, Westfall, Wilcox & Welker in St. George Utah. While with this law firm he specialized in government affairs...

These three are the chief lobbyists for the Utah Realtors Association and they pull the strings on a million dollar (PAC money) influence peddling scheme which has been increasingly effective for almost nine years now.

They even scare me and I am relatively fearless. Apparently many in the legislature are intimidated even the Ethics Commission. That will just have to change.

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