Thursday, February 21, 2008

Powder Mountain Update: House Committee Turns Its Back on Self-government

The "fix" is in, just as gentle reader Curmudgeon predicted -- UPDATED

Kristen Moulton's morning followup story bears the bad news for the citizens of Ogden Valley. The article is brief, so we'll incorporate it in full:
A House committee this morning endorsed a makeover of a bill that allows town incorporations, but refused requests of impassioned Ogden Valley residents to make the new law apply to Powder Mountain town.
The residents delivered petitions with nearly 520 signatures of those opposed to efforts of the new owners of Powder Mountain ski resort to incorporate as a town.
"You are putting us in a jurisdiction in which we have no vote," said Darla Longhurst-Van Zeben, who lives in the Eden area set to be part of the new town. "That is absolutely wrong."
The developers filed an incorporation petition in January and included in the boundaries some 60 homes of the Eden area, many of whom do not want to be part of the new town. To incorporate, Powder Mountain needs 100 residents, and the resort does not have that many residents.
The House Political Subdivisions Committee declined to make HB164 retroactive to Jan. 1 or otherwise amend the law so it would apply to the Powder Mountain incorporation.
Rep. Kerry Gibson, R-Ogden, acknowledged after the hearing that last year's HB466 was a "major screw-up."
The Weber County Commission could be asked to approve the petition as early Tuesday.
Barring floor amendment to add a retractivity provision when debate begins on the House floor in a few days, it appears that the soon-to-be politically disenfranchised folks in Powderville may very well start living under at least two years of corporate dictorship -- perhaps as early as next week.

We link here the roster of the House Political Subdivisions Committee members who wouldn't lift even a finger to fix the "unintended results" of last year's HB466, which one Weber County House member even admitted to have been a "major screw-up." All of these same folks will be coming around in November to ask for our readers' votes. We urge everyone to print out this list, and file it for future reference. Chalk this up as the most shameful day yet, in what's turning out to be the most shameful legislative session in recent memory.

Comments, anyone?

Update 2/21/08 8:29 p.m. MT: Whatever you do, don't miss Minor Machman's latest cranky analysis of today's committee meeting, on his own Utah Wingmen for Property Tax RE-FORUM blogsite. Let there no doubt. The citizens of Ogden Valley have "true grit," which is especially well-demonstrated by a genuine Vietnam War combat pilot American hero like MM, who's preparing to release ordnance now that he's living his life as a civilian, and to do a political bombing run on the greedhead "bad neighbors" of Powder Mountain Development, and those cowardly House Committee Members -- especially those four from Weber County -- who sat on their thumbs throughout today's committee hearing, and delivered the message to the citizens of eastern Weber County: "Screw you!"


Curmudgeon said...

Since Powderville will be going before the Weber County Commission shortly, perhaps it might be prudent to direct the attention of the members thereof to two cautionary tales in the public prints today raising questions about the prudence of embarking on massive resort ski and golf developments at this particular time.

The first appeared in this morning's SE, on the business page. From the story:

BOISE, Idaho — The two largest investors in Tamarack Resort have filed for bankruptcy protection to avoid foreclosure by a financial lender, blaming a credit crunch caused by subprime loans in the U.S. and a banking scandal in France. Cross Atlantic Real Estate LLC, which owns 27 percent of the resort, and VPG Investments LLC, which owns 48 percent, filed for bankruptcy protection Friday in federal court in Boise.

Jean Pierre Boespflug, CEO of the McCallarea ski and golf resort and owner of Cross Atlantic, said the bankruptcy filings are necessary to protect assets from the global financial services company Credit Suisse, which is owed more than $262 million from resort construction loans....

“With this credit crisis, bankers are terrified,” he said. “We are a new destination that banks are not used to. The (McCall area) in Idaho, that’s a new destination. In this market, credit committees, particularly of foreign banks, are concerned.

“We’re seeing good signs that we will be able to resolve some things in the next 60 to 90 days — getting a loan,” he said. “In the meantime, we’re safe, but we’ve had to slow down construction. There’s some construction, but it’s very minimal.” He said the resort’s goal this year is to build 129 condominiums, 22 townhouses, and an additional 10 custom homes....

The second is from today's NY Times. Recalling that the Powderville developers plan to build two 18 hole golf courses in their new resort/town, I thought this article interesting:

More Americans Are Giving Up Golf By PAUL VITELLO


“The problem is time,” offered Walter Hurney, a real estate developer. “There just isn’t enough time. Men won’t spend a whole day away from their family anymore.”

William A. Gatz, owner of the Long Island National Golf Club in Riverhead, said the problem was fundamental economics: too much supply, not enough demand....

Over the past decade, the leisure activity most closely associated with corporate success in America has been in a kind of recession.
The total number of people who play has declined or remained flat each year since 2000, dropping to about 26 million from 30 million, according to the National Golf Foundation and the Sporting Goods Manufacturers Association.

More troubling to golf boosters, the number of people who play 25 times a year or more fell to 4.6 million in 2005 from 6.9 million in 2000, a loss of about a third....

The five men who met here at the Wind Watch Golf Club a couple of weeks ago, golf aficionados all, wondered out loud about the reasons. Was it the economy? Changing family dynamics? A glut of golf courses? A surfeit of etiquette rules — like not letting people use their cellphones for the four hours it typically takes to play a round of 18 holes?

Or was it just the four hours....?

The disappearance of golfers over the past several years is part of a broader decline in outdoor activities — including tennis, swimming, hiking, biking and downhill skiing — according to a number of academic and recreation industry studies....

Surveys sponsored by the foundation have asked players what keeps them away. “The answer is usually economic,” Mr. Kass said. “No time. Two jobs. Real wages not going up. Pensions going away. Corporate cutbacks in country club memberships — all that doom and gloom stuff.”

In many parts of the country, high expectations for a golf bonanza paralleling baby boomer retirements led to what is now considered a vast overbuilding of golf courses.
Between 1990 and 2003, developers built more than 3,000 new golf courses in the United States, bringing the total to about 16,000. Several hundred have closed in the last few years, most of them in Arizona, Florida, Michigan and South Carolina, according to the foundation.

(Scores more courses are listed for sale on the Web site of the National Golf Course Owners Association....

The whole article is worth reading.

ozboy said...

I see Gage Froerer is Vice Chair of this committee. Does any one know what his stance was on this? Did any of the committee members advocate for the citizens who are having their rights taken?

Speaker of the house Curtis has made it known that he doesn't want his developer friends inconvenienced by a retroactive clause. He would much rather have a hundred people's rights stomped on than he would have one developer disappointed!

I agree Rudi, this is the sorriest assed legislature in a long line of sorry assed Utah legislatures.

Still wondering if someone is going to mount a legal battle over what appears to be a violation of these folk's constitutional rights.

edentribe said...

I think Gage has been working very hard to correct this. And he did try to give us some help today. We are going to mount a legal battle, don't you worry. The fight has just begun!!!!

Curmudgeon said...


I'm hard put to think of specifically enforceable right here in the US Const, but I am no expert on con-law. The lack of representation for two years [the developers and petitioners name the new town officials] may indeed raise serious constitutional questions. I don't know much of anything about the Utah constitution. Are there specific provisions therein regarding representation as an enforceable right at the town level?

As I've noted before, retroactive laws make me uncomfortable and I can understand the House and Senate's concern about that, but the more I've thought about the lack of representation involved in the Utah town forming procedure... residents don't get to vote on creating the town they will be residents of; petitioners get to name town officials for first two years until an election... the more I think there must be --- there certainly should be --- some enforceable right being denied to the residents who find themselves without any say whatever in whether the new town that will be theirs should be created, and with no say whatever [by means of a vote] in selecting the town officials until two years after the town's formation.

If anyone knows of something in the Utah Constitution bearing directly on this matter of right of representation, please share.

Andy (ex Ogdenite) said...

WTF is going on in my old home state?
Did I miss something? Did Utah leave the union? Did the Utah Legislature finally succeed in succeeding from the United States? Is this shit really legal?

Curmudgeon said...

It might be interesting to bring a case under the 9th Amendment:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Ninth amendment cases are difficult, because you have to establish first the existence of the unenumerated right. The advantage though is that the umbrella of "unenumerated rights" is pretty broad, so there is room under it for matters not raisable under other provisions of the Const. And since the 14th Amendment, the prohibitions on government action in the Bill of Rights are extended to state government action as well, this might be a way to bring a case against the Utah statute under the US Constitution. If so, it's something the ACLU might be interested in.

But the best bet, I think, would be to raise the issue under provisions of the Utah Constitution, provided it somewhere specifically guarantees an enforceable right of representation down as low as the town level of government. Whether it does or not, I don't know.

googlegirl said...

The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall… deny to any person within its jurisdiction the equal protection of the laws." The Equal Protection Clause can be seen as an attempt to secure the promise of the United States' professed commitment to the proposition that "all men are created equal" by empowering the judiciary to enforce that principle against the states.

The Supreme Court has repeatedly stated that voting is a"fundamental right" on the same plane as marriage (Loving v. Virginia), privacy (Griswold v. Connecticut (1965)), or interstate travel (Shapiro v. Thompson (1969)). For any abridgment of those rights to be constitutional, the Court has held, the legislation must pass strict scrutiny. Thus, on this account, equal protection jurisprudence may be appropriately applied to voting rights.

Equal Protection Clause, Wikipedia

danny said...

Why can't a neighboring community just annex the homes that Powder Monster wants to swallow, as was done to stop a similar abomination down south in Alpine?

Why can't the county commission trump up some reason to reject Powder Monster's petition? If they sue, put defending that suit at the top of the list of public priority.

danny said...

Since it’s kinda quiet right now and this is the time of day that my tranquilizers wear off, perhaps I could respond to Dan S. from yesterday, who asked whether he should teach Flat Earth to his Astronomy class students.

Yes and no, Dan. Of course you should teach Flat Earth, right alongside evolution, predictions of inflation and economic growth from the government and the Fed, analysis of the US constitution by Harvard Law School, diagrams of the engine room of the Starship Enterprise, and the proper use of wands for wizards.

But they should be taught in a class on Fantasy and Illusion in the Modern World, not Astronomy. Or, such things as Creationism and Evolution can be taught alongside each other not in Science class, but in Comparative Religion class.

As far as where we all came from, well, you can just tell the truth and say you have no freaking idea. But then who wants to pay tuition to a people to say that? Nobody. Okay, now I get it.

Curmudgeon said...


Interesting idea. Most of the vote cases I am familiar with involve one group being permitted to vote, and another group being denied the vote. Which is not quite the same situation we have here, since no voting is involved in the process at all. Be fun to see it argued on 14th Amendment grounds.

The downside is, of course, that if the WC Commission approves the petition [and if it strictly speaking meets the requirements of the existing law, they may conclude they have no option but to approve], any judicial challenge on constitutional grounds would, I suspect, be lengthy and expensive.

I wonder if the WC Commission can accept the "opt out" petition of the Wolf Creek resort property owners, and if that will drop Powderville below the minimum requirements needed to form a town. If so, if Powderville reapplied with new town borders proposed to get the acres/residents up high enough again, that new petition would come under the revised rules now moving through the legislature [if they move quickly], not under the old ones. No retroactivity involved then?

We shall see....

Also will be interesting to see if a retroactivity amendment is offered from the floor [House or Senate] and how the vote goes on that.

Monotreme said...


I draw your attention to Matthew 7:3.

You have a beam in your eye, buddy.

dan s. said...

Curm and Googlegirl,

To this amateur it certainly appears that the establishment of Powderville would violate the citizens' voting rights under the equal protection clause.

Check out this 1996 federal appeals court decision affirming the right of Mountain Village (near Telluride) to grant voting rights to nonresident property owners.

While the decision was in favor of the property owners and against the residents, the rationale for the decision relies on a number of facts that don't apply to Powderville: The town of Mountain Village was incorporated by a vote of the residents; the town's charter was also adopted by a vote of the residents; and although the charter grants voting rights to nonresidents, it doesn't take away the voting rights of any residents (even those who don't own property).

As Curm points out, the big unresolved issue in Powderville is the fact that no voting is involved at all. But I think a strong case can be made that citizens are entitled to live under a representative government--not under a government appointed by those who happen to own most of the property. Does anyone know of any constitutional case law on that specific issue? Where else has anyone tried to establish a local government by such a mechanism?

Curmudgeon said...

Off topic, but I can't resist: Buttars yet again.... from Paul Rolly's column in today's SL Trib:

Embattled state Sen. Chris Buttars not only is in the habit of trying to usurp city governments that pass ordinances he doesn't like and making insensitive remarks that offend minorities, he also likes to threaten judges who rule against his friends.
After 4th District Judge Derek Pullan ruled against developer Wendell Gibby in a land dispute with the city of Mapleton, Buttars wrote the judge a scathing letter on his Senate stationery and pointed out that he is the chairman of the Senate Confirmation Committee.
Gibby, a radiologist, owns 120 acres in an "Environmentally Restricted Zoning District" in the foothills above Mapleton and has been in a lengthy legal dispute with the city for years over his attempts to develop the land.
Pullan had ruled that the city could force a right of way on Gibby's land under the theory of a "one-way emergency access road," which triggered Buttars' ire.
"As chair of the Senate Confirmation Committee," Buttars reminded the judge, "I was subject to some criticism for having supported your confirmation. Your critics expressed concern for your lack of legal experience, they were also concerned that your political participation on some issues would prejudice future decisions."
Buttars also wrote: "I had hoped that we had appointed a judge that would err on the side of individual rights, not a liberal activist judge who wouldchampion government." He added that he was "embarrassed" that he had supported Pullan.
Gibby has been a campaign supporter and a fundraiser for Buttars, a West Jordan Republican. Buttars has sponsored several bills that benefit Gibby, and he has allowed Gibby to use his Senate office to do his own lobbying, which prompted complaints from some legislators.

And the beat goes on....

Tec Jonson said...


While there is no concrete evidence of evolution from a certain beginning, there is little evidence at all of creation from any given point in history. Intelligent Design attempts to overlay natural history with a logic acquired from centuries of scientific analysis as though a creator zapped everything in existence with an interrelationship factor that could only come from eons of coexistence and progressive refinement of the given environment.

Evolution offers so much more to discovery as it is an open ended view of the infinity of diversity. While I.D. tries to trump the whole process with a defined starting point that puts humans in the center of all creation. Pretty narrow and homo(sapien) centric view, if you ask me. I prefer to see natural history as a treasure trove of fresh discoveries whether it ever leads to a conclusive determination of a beginning. Why should there be a beginning that satisfies a human's simple-minded desire for something nicely packaged for easy understanding. Is the universe so cut and dried. Hardly. For a guy who writes with such humor and fast wit, this revelation of your creation-fueled logic has me baffled. To each his own. You have a right to self-deception. I hate to belittle a man's beliefs but you laid it out bare for us all. Just because human evolution from apes cannot be proven does not debunk the billions of examples of evolutionary tendency in all things living and "inanimate"(little things like mountains and continental plates evolve and leave obvious trails to their proof)

Tec Jonson said...

Tamarack Resort was one of the resorts given as an example by Peterson as a model for his Mt Ogden land grabass development. Statements were made at the time that they had sold out on several presales. Where are those buyers today?

Curmudgeon said...


Nice catch. I'd forgotten that.

edentribe said...

Danny- In regards to PM Town:
The annex idea is a good one. It may be more difficult since the closest "city" is Huntsville.
And you are right about the Commissioners. They could easily say that the petition should be rejected based on several reasons-take your pick. They act like their hands are tied, but it is not true. We'll see if they "have the...courage" as one of my neighbors said.

Bill C. said...

Dan and Danny, come on guys, I would hope that neither of you have fallen for the constant crumbling mythology that surrounds the Columbus tale.
No significant population has ever believed the earth to be flat. Just because their maps were flat doesn't mean the map maker assumed so too was the earth. All the peoples that would eventually succomb to Columbus' arrival new the world to round. Look at their understanding of astronomy, their regard of high places. What do you think they saw? The curvature of the earth. Just because they weren't technically advanced by our standards, don't assume them to be mentally inferior.

dan s. said...

Bill, there's plenty of evidence that many ancient people believed the earth to be flat. If you don't travel much, and especially if you live inland, it's the most obvious model. On the other hand, any intelligent person who travels far enough and pays attention to the stars can figure out the earth is round. You're undoubtedly correct that many people, in many cultures, came to this conclusion. I'm not convinced that you can clearly see the curvature of the earth from any mountaintop, but perhaps under ideal conditions, on a mountain near the sea, you can.

Bonnie Lee said...


You would think that Intelligent Design could come up with something better than Matt Godfrey. Seems to me that the only thing that could explain the likes of him is total random selection. Hopefully he will be one of those dead end species.

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