Wednesday, September 17, 2008

Powder Mountain Update: Weber County Files its Responsive Pleading

The County raises a state constitutional issue, among other apparent defenses

Earlier this month we reported that the Powder Mountain developer had filed an action in the 2d District court, seeking an order to compel the Weber County Commission to fill the mayor and council positions in Ogden Valley's new "Powderville" town, from the developer's carefully-crafted list of lackeys and sycophants.

The Standard-Examiner reports this morning that Weber County has now filed an answer to the developer's complaint. This morning's Di Lewis story give us a first glimpse of the county's legal position in this matter. From this morning's story:
OGDEN — Granting developers the right to create a town without input and then select town government without oversight is “tantamount to monarchy.”
At least that’s what the Weber County Attorney’s Office says.
In a response filed Tuesday to Aug. 26 litigation from Powder Mountain developers, the Weber County Commission acknowledges it was required by law to appoint a mayor and town council for Powder Mountain after the resort incorporated as a town on Aug. 5.
The argument now, however, is who gets to choose names on the list from which the appointments will be made.
We'd earlier surmised that the county might assert defenses based on constitutional grounds, and it appears that the county has done just that. Ms. Lewis's article provides the gist:
In response, the commission asserts this stance violates the Utah Constitution by delegating authority to control municipal functions to a private group.
Article VI Section 28 of the Constitution states, “The Legislature shall not delegate to any special commission, private corporation or association any power to … perform any municipal functions.”
This morning's article is a mite vague as the the nature of any other defenses which might be contained the in the County's responsive pleadings, although Ms. Lewis does provide a few tantalizing hints:
Commissioners argue the law requires them to appoint “from a list of qualified individuals approved by the petition sponsors,” not from “the list” submitted by the town’s founders. [...]
The response also argues the selection of the town government is critical to the success and well-being of the town, especially because it was formed without outside input.
The response adds that, if the Legislature had intended for the commission to approve any qualified list from the petitioners, the law would have been worded differently.
The commissioners said they are supposed to protect the health, safety and welfare of county residents and attempted to do so by seeking input from both residents and the petition sponsors of Powder Mountain.
However, they feel they cannot fulfill their duties if forced to approve only the developers’ list.
In this connection, your blogmeister plans to trot down to the courthouse this morning, to obtain copies of the pleadings now on file. If all goes well, we'll scan and upload electronic versions for the benefit of our readers, who no doubt share your blogmeister's curiosity about the precise nature of the arguments which the Weber County Attorney's office has mustered in the defense of the Commission's actions to date.

Until then... don't let the cat get your tongues, O gentle ones.


dan s. said...

I suspect that the developer interests who wrote HB 466 really did intend for the petitioners to have total control over the makeup of the town government.

Let's hope the courts agree that this clause in the Utah Constitution is applicable.

Sounds like the county didn't raise the federal constitutional issue--that developer control of the appointment process would violate the equal protection clause of the 14th Amendment.

One way or another, however, you would think that here in America we would not allow a system of government that is "tantamount to monarchy". Three cheers for the county for fighting this atrocity and for calling it what it is.

Merlin said...

Methinks the constitutional issue of the homeowners is a different animal. There will be time to pursue that angle in a Federal Court if the incorporation overcomes the County's legal issue on the town council.

dan s. said...

By the way, everyone, Happy Constitution Day!

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