Minutes for 2010-06-01, Direct pdf link.

MINUTES
OF THE BOARD OF COMMISSIONERS OF WEBER COUNTY
Tuesday, June 1, 2010 - 5:30 p.m.
Commission Chambers, 2380 Washington Blvd., Ogden, Utah
In accordance with the requirements of Utah Code Annotated Section 52-4-7(1)(d), the County Clerk records in the minutes the names of all citizens who appear and speak at a County Commission meeting and the substance “in brief” of their comments. Such statements may include opinion or purported facts. The County does not verify the accuracy or truth of any statement but includes it as part of the record pursuant to state law.Commissioners: Kenneth A. Bischoff, Chair; Jan M. Zogmaister and Craig L. Dearden.

Others Present: David C. Wilson, Deputy County Attorney; Douglas Larsen, County Clerk/Auditor’s Office; Fátima Fernelius, of the Clerk/Auditor’s Office, took minutes.

A. Welcome - Chair Bischoff
B. Pledge of Allegiance - Fátima Fernelius
C. Thought of the Day - Commissioner Zogmaister

D. Consent Items:
1. Purchase Orders in the amount of $42,787.14
2. Warrants #262338 - #262637 in the amount of $1,665,996.13
3. Minutes for the meeting held on May 18, 2010
4. New business licenses
5. Surplus 21 conference room chairs from the Golden Spike Event Center
6. ACH payment to US Bank in the amount of $71,381.81 for purchasing card transactions made through the billing cycle ending May 17, 2010
7. Set public hearing for June 22, 2010, 10 a.m., to consider rezoning property located at approximately 1770 East 6200 South from Gravel Zone G to Residential Estates RE-15
Commissioner Dearden moved to approve the consent items as presented; Commissioner Zogmaister seconded, all voting aye.

E. Action Items:

1. Final approval of CJ Hancock Subdivision (One Lot)

Iris Hennon, County Planning Division, stated that this subdivision will front onto 4700 W., a State road (SR-134). The Utah Department of Transportation has given its approval of this subdivision’s access request onto SR-134, however, it has not yet made decision on the requested variance to defer curb, gutter and sidewalk.

This lot meets the site development and frontage requirements of the A-1 Zone and the subdivision complies with the county’s Subdivision and Zoning Ordinance. Culinary water will be provided by Taylor-West Weber Water Improvement District and waste water handled by an approved septic system. The Fire District is requiring that a fire hydrant to be located along 4700 W., which the contractor was to put in last Friday, however, this did not occur due to having the wrong pipes and Ms. Hennon asked that approval be contingent upon UDOT’s approval of the variance and the fire hydrant being put in. Staff and the Western Weber Planning Commission unanimously recommended approval. Commissioner Zogmaister asked if UDOT decided to require curb, gutter and sidewalk if these would be put in as part of this approval and Ms. Hennon stated that was correct.
Commissioner Zogmaister moved to grant final approval of CJ Hancock Subdivision (1 lot) with the two discussed contingencies–curb, gutter and sidewalk and the fire hydrant; Commissioner Dearden seconded, all voting aye.

 

 2. Directing county staff to prepare an agreement with Weber Pathways regarding use of property owned by Weber County Corp. as a public trail with said property more fully described in Book 32 Page 580 in the County Recorder’s Office

Commissioner Zogmaister noted that this item had been discussed at the 5/11/2010 meeting. A letter had been received from Weber Pathways requesting the county to consider using the old Uintah road property as a pathway between South Ogden and Uintah City as a Bonneville Shoreline pathway connector. She had discussed this item with several pertinent people and recommended approval.
Commissioner Dearden moved to direct county staff to prepare an agreement with Weber Pathways regarding the use of property owned by Weber County (described in Book 32 Page 580 in the County Recorder’s Office) as a public trail; Commissioner Zogmaister seconded, all voting aye.

 

3. Contracts with Downtown Ogden, Inc. for RAMP Grants - Contracts C2010-113-120

Shelley Halacy, Commission Office, presented these contracts.
Commissioner Dearden moved to approve RAMP Contracts C2010-113 through 120 with Downtown Ogden, Inc.; Commissioner Zogmaister seconded, all voting aye.

4. Appoint a member of the Weber County Justice Court Nominating Commission

David Wilson, Deputy County Attorney, noted that a year ago the legislature had changed the process for filling Justice Court judge vacancies. The legislation provides for the creation of a nominating commission. Harrisville City has given notice that they are in need of setting up this commission and the city has primary responsibility of doing so. The commission is comprised of five members (one appointed by the County Commission, one by Weber County municipalities, one by the local legal bar association, and two by Harrisville). The appointment cannot be an elected official from the municipalities or the appointment from the county. Dee Smith, County Attorney, is recommending Chris Shaw, a deputy county attorney, as the county’s appointment and Mr. Wilson now presented the name for the Commission’s consideration.
Commissioner Zogmaister moved to appoint Chris Shaw to the Weber County Justice Court Nominating Commission; Commissioner Dearden seconded, all voting aye.

5. Waterline Easement Agreement with Tamera Hart - Contract C2010-121

Chair Bischoff noted that this item had been discussed at length at the 5/11/2010 meeting but there been concerns regarding the exact location of the easement, which is to cross the county road (discussed above in item E.2.) to bring a waterline to Ms. Hart’s private property.

Ernest Rowley, County Recorder/Surveyor, had not seen the agreement but said that the intent of the legal description attached to the agreement attempted to identify the as-constructed location of the waterline, which at this time is not precisely known. Additionally, the boundaries of the county road are not known because of surveying concerns that have not yet been resolved. Chair Bischoff noted that under the agreement, the parties agree that the county shall have the sole/exclusive authority to change the location of the easement from time to time as necessary to serve the needs of the county in managing the county property, but providing an alternate easement to the grantee. Mr. Rowley asked if this was perpetual or just during the construction phase. David Wilson, Deputy County Attorney, stated that this is typical language in county-granted easements so that if the county needs the location changed for some reason, it can be done. He also noted that it is perpetual.

From the attached map, Commissioner Zogmaister noted how much of the waterline was under or along the road–she had believed it was going to cross the road rather than follow it, which would be a very short, direct line. Mr. Rowley said that was the petitioner’s engineers’ representation of where they think the county road is located and where the waterline is supposed to go, and it would travel under the road about 420 ft.
Ms. Hart stated that the drawing before the Commission was as close to describing where the waterline would be as they could get. The waterline will come straight down from above along the side of the Rapoza’s property, then go along the side of the county road crossing it to the east–this is to disturb the trees and the Rapoza’s property as little as possible. The waterline will be buried under the trail and will not disturb it; the agreement states that the ground will be restored. Ms. Hart’s plan is to immediately start putting in the waterline, which is on the overall site plan submitted to the Planning Division. Mr. Rowley stated that utilities are installed in road corridors all over the county.
Commissioner Dearden moved to approve Contract C2010-121, Waterline Easement Agreement with Tamera Hart; Commissioner Zogmaister seconded, all voting aye.

6. First Reading of an Ordinance making certain changes to Title 24, Chapter 7 of the Weber County Ordinances relating to the RAMP Tax

David Wilson, Deputy County Attorney, stated that this amendment is to ensure population-based RAMP grant projects are completed within one year of the date of the notice of the approval letter sent by the County Commission. If they fail to complete the projects and the Commission does not extend the time, RAMP funds for those population grants will be reallocated to other RAMP projects.
Commissioner Zogmaister moved to approve the first reading of an ordinance making certain changes to Title 24, Chapter 7 of the County Ordinances relating to the RAMP tax; Commissioner Dearden seconded, all voting aye.

 

7. Power Easement Agreement with Rocky Mountain Power - Contract C2010-122

Nate Pierce, County Operations Department Director, stated that this was the second part of an agreement approved on 5/4/2010 for an underground power supply to the current Animal Shelter expansion project. It is for an easement for placement of that underground power source. He noted there had been a problem with the easement description a couple of weeks ago.
Commissioner Dearden moved to approve Contract C2010-122, Power Easement Agreement with Rocky Mountain Power; Commissioner Zogmaister seconded, all voting aye.

F. Public Hearing:

1. Commissioner Dearden moved to adjourn the public meeting and convene the public hearing; Commissioner Zogmaister seconded, all voting aye.

2. Public hearing to consider and/or take action on Zoning Petition #18-2006 involving a request to rezone property located at Powder Mountain Resort. The proposed rezone covers approximately 4,234 acres within Weber County and would change the existing resort zoning from Forest Residential-3 (FR-3), Forest Valley-3 (FV-3), Commercial Valley Resort Recreation-1 (CVR-1), and Forest-40 (F-40) to Forest Valley-3 (FV-3), Commercial Valley Resort Recreation-1 (CVR-1), and Forest 40 (F-40)

Chair Bischoff noted that Commissioner Dearden had been the point commissioner on this issue, which had taken a lot of time and effort by the commissioner, developers–Western America Holdings (WAH), committees and citizens.

Commissioner Dearden stated that Powder Mountain filed for incorporation in January 2008 under statute HB466, which did not require an election or even a majority of registered voters to sign a petition for incorporation. Moreover, the legislation did not allow residents to elect their first mayor and town council. In his opinion, the incorporation took the citizens entirely out of the process. The intent or purpose of incorporation legislation is to help citizens form their own town when they desire local control or more municipal type services. Because the petitioners for incorporation met the requirements of a “qualified petition,” the Commission approved the petition for incorporation but declined to appoint the mayor and town council from the list provided by the incorporation petitioners.  The Commission started dialogue with WAH to see if a development agreement could be reached to take the incorporation petition off the table. For about four months there was work on a development agreement that came before the Commission in a public hearing on 7/8/2008 but was not acted upon. Litigation ensued to determine the Commission’s ability to appoint the town council from a wider pool of people. In the meantime, the legislature met and passed corrective legislation (HB218).

Commissioner Dearden noted that Representative Froerer ran a bill to allow for disincorporation immediately upon incorporation of the town, which failed last year. He ran the bill again this year and it failed again. During the legislative session, WAH contacted the Commission and asked if they would be willing to discuss the issue again and tonight a Memorandum of Understanding (MOU) was discussed. Commissioner Dearden noted that much time and effort had been put forth on the MOU (there had been 12-13 drafts).

Scott Mendoza, County Planning Division, gave some history stating that on 9/6/2006 representatives of Powder Mountain Resort submitted a petition to rezone approximately 4,234 acres in order to accommodate future expansion and development of a 4-season destination resort. On 12/11/2006 the project was presented to the Ogden Valley Planning Commission as a discussion item only since Weber County was in the midst of developing a destination and recreation resort zone ordinance. The project was voluntarily put on hold by the petitioner, anticipating that the resort ordinance could be completed by the 2007 Spring, however, development of the resort zone ordinance went beyond this time frame. The petitioner requested that the project be placed on the 7/11/2007 Ogden Valley Planning Commission (Planning Commission) agenda to re-introduce it, which occurred, and it was then scheduled for a Planning Commission meeting on 8/1/2007 and nearly 500 fairly detailed public meeting notices were sent to residents. The item was tabled in order to allow the petitioner time to gather specific information related to the questions that had been asked. County staff and the Planning Commission continued working with the petitioner’s representatives and during the next four months five meetings were held, including an informative field trip to Powder Mountain. By the 12/10/2007 Planning Commission meeting, the planning commissioners felt they had taken ample public input and received the information they had asked for. They recommended approval of the project to the County Commission subject to 19 conditions, listed in the staff report. On 1/18/2008 the petition for incorporation of the town was filed with the Clerk/Auditor’s Office and five weeks later the project came to the County Commission.

Joseph Pierce stated that he and Steve Nielsen, who was also a presenter tonight, were partners in a firm called Pronaia Capital Partners, LTD, the asset management company for WAH, the developers. About 8 months ago a number of Powder Mountain limited partners asked Pronaia to take over the management because they had been unhappy with prior management. Mr. Pierce said that neither the developers, the Commission nor many residents were happy with the MOU and everyone was making hard decisions in reaching it. Between 25-30 people (including Mr. Pierce, Utah senators, representatives, Commissioner Dearden and a number of Eden residents) had met in a room at the legislature and were arguing their positions when Senate President Waddoups told them to go back and try resolving their differences. They have been working on this issue for 4-5 months and the MOU, though not the final step, is the result of discussions with residents, Planning Division staff, Commissioner Dearden and counsel for both parties and it begins the process of eliminating incorporation and litigation. A development Agreement will need to be passed and that process will take 6 months or longer.

Mr. Pierce highlighted the following sections of the MOU that had been specifically requested by a number of residents and/or the Commission: Section 2.5, Open Land Donation - sets incremental amounts to be donated by WAH to purchase open lands. Section 4, 1.5% Transfer Fee - whereby the developers agree to the imposition of a 1.5% real estate transfer fee on all real property transfers within the Powder Mountain project to any retail buyer and those funds will be used for open space purchase and road improvements. Senate Bill 161 enacted at the 2010 legislative session may prohibit the assessment and use of transfer fees and under this MOU the parties agree to seek amendment. If they are unable to obtain it, they will set up a trust/mechanism to hold 1.5% of the real estate sales proceeds.  Last week Pronaia met with a number of residents who were concerned with Eden Heights being included in the MOU. Those issues will be resolved separately and Mr. Pierce said that the developers and the Commission decided it was prudent to remove Eden Heights entirely from the MOU. There will only be one golf course, which had also been requested.

Mr. Pierce showed a rendition of the project stating that, as part of the development agreement, they would be clustering significantly with villages and pods and more than 80% of the property would be open space on the mountain top. He said that there are challenges to resolve in the development agreement but feels they are resolvable. He read a letter in support of the MOU from Ogden City Mayor Matthew Godfrey. Mr. Pierce noted that many ask why 2,800 units and this was a result of extensive analysis as to what will make this a successful project. He assured that this would not be a short-term development process–anticipated over 25 years, and in the next five years to have about 150 units.

Mr. Nielsen addressed some questions that had been voiced at individual and community meetings:
-A main concern is the safety of Hwy. 158/Powder Mountain Road and Mr. Nielsen said the developers share those concerns and want to see improvements. It is a UDOT-maintained road and WAH has made suggestions and offers to UDOT to try to improve that road, including sending a Powder Mountain manager to a meeting with UDOT and offering to deed land to UDOT and provide Powder Mountain’s equipment and personnel to build a runaway ramp; UDOT has not accepted those offers. According to UDOT that road had 14 crashes in 2006, 16 in 2007 and 13 in 2008.
-Secondary-road access - the developers have examined this closely, looking at access through Cache County, Monte Cristo, etc., but there are big challenges with this issue. The developers feel it is better use of money to put it toward the primary road because 90% of those that travel to Powder Mountain use that road. The developers will continue working with UDOT.
-Transfer Fee - there have been many questions about this issue and Mr. Nielsen said that this 1 ½% fee would be applied to all the units, even those that Powder Mountain is currently entitled to, and would be a significant financial benefit.
-The number of units can change–with 2,800 units all planned at the top of Powder Mountain there would be a mix of units, some single family, condominiums, hotel, etc., and they were using conservative selling prices (single family, $750,000, condos $450,000), resulting in $17 million to go to open space and road improvements and they want to change legislation and keep that fee perpetual.
-The developers anticipate that 80-90% will be second homes in this top of the mountain development. Mr. Nielsen said that traffic from secondary homes would be less than that of primary homes.

Chair Bischoff invited public comments and following is a summary. Many expressed thanks to the Commission for their many efforts in trying to resolved this issue.

Darla Van Zeben, Eden resident/in the proposed town area, stated that everyone was present today because of a bad law. As one of the plaintiffs, she said that the lawsuit was not a panacea that would make this go away, that the court did not rule on the fairness of the situation, only on the legality, and that the citizen lawsuit plaintiffs were on record as supporting the Commission’s approval of the MOU. One of the most compelling reasons to accept it was that it keeps the entire Ogden Valley together, including the 20,000+ acres that constitutes Powder Mountain Town, in one planning and zoning entity. For a compromise on density on 4,200 acres, the county preserves its ability to control zoning on the other 16,000 acres, including the hillsides. Additionally, Valley residents maintain their right to have a voice in what happens to that very large tract of land. As of this morning, of the 28 voters in Ms. Van Zeben’s subdivision, Wolf Creek Subdivision #1 (the closest to the proposed development), 24 are in favor of this MOU. They will be impacted–all the traffic to Powder Mountain runs right through their neighborhood, and they are counting on the Commission to protect them with what they include in the development agreement.

Steve Clarke, of Eden, stated that the MOU represented good progress on the part of both parties and he asked the Commission to table a decision, enabling continued work on two major MOU issues: fairness; putting teeth into the road study, and one process issue. In 1998 Valley residents who owned more than one acre gave up 2/3 of their building rights when the minimum lot size was changed to 3 acres, in the interest of supporting the General Plan. They depend on the Commission to protect that and not grant rights back to developers who request generous rezones. Taking from one and giving to another seems unfair. The petitioners suggest a real estate transfer fee to be used to increase open space, promoting a rural atmosphere and this would be an excellent idea if it was legal. He recommended tabling the proposal to get the legislature to make it legal. He agreed with the idea of a trust fund, but it would only be in effect for the first land retail sale structure and would return much less to be used for open space in the long run. The proposal to provide $1.35 million on full build-out is a relatively small amount, most of which comes late in the project life. The petitioner has offered to conduct the road study and the proposal should be tabled to arrive at a plan which really improves safety for residents and visitors. Finally, the issue whether to work for a pragmatic solution or stand on principle needed to be decided. The possibly legal but immoral petition to incorporate has pushed this decision toward the pragmatic side. The residents are held hostage by the developers who maintain their investors are holding them hostage, and the State Senate holds the Commission hostage. He urged the Commission to stand on principle and push the incorporation back to the Senate leadership.

Cheryl Sowers, of Eden, stated that their family has raised four generations at Powder Mountain, which offers employment and recreation. They know the road is a concern. Powder Mountain offers bus service to the mountain and the State has a gate and has the option to close it if it is not safe. Perhaps the State and county could post more signs about safety.

Judy Knudtson, of Eden, stated that she and her husband were full-time residents and were among families being forced into the proposed Powder Mountain town and were not at all happy. They felt this was a move by former Powder Mountain representatives who took advantage of a loophole in the law so they would not have to deal with county development regulations they did not like. New Powder Mountain management put forth an MOU and she supports it, though it is not perfect. She has invested time and money in the lawsuit and believes that money and powerful lobbying impacted law makers. Twice a bill that would have deleted Powder Mountain town was buried in the Utah legislature with no hope of passing. Fairness is another issue that bothers many residents who ask why Powder Mountain got zoning variances when many land owners gave up development rights when the FV-3 zoning was imposed in the Valley. Powder Mountain is a jewel and should be developed and maintained in a pristine manner.

Drew Johnson, of Eden, stated that the commissioners had been put in a difficult position of having to negotiate for hostages and stated he was not a bargaining chip. He asked the Commission to table this issue to allow Powder Mountain to withdraw the incorporation petition and pleaded with Powder Mountain representatives to rescind it stating that the Valley would resent them, creating an irreparable chasm.

Ed Adair, of Eden, stated that there was far more at stake than the 57 families that, in his opinion, had been unethically held hostage by the incorporation statute that had been put into effect and later rescinded. There seems to be plenty of support by Valley residents to see the lawsuit to the end, if the legislature does not pass a law to eliminate this situation. He expressed concern with the MOU and specifically noted language relating to introductory transfer fee amounts referred to by Mr. Pierce because there were no specifics. He believed the developers purchased this property knowing that it had a dedicated amount of units allowed under the resort ordinance, yet they went ahead and purchased the property thinking they could increase it by more than double the set number. He asked the Commission to examine that number carefully.

Jon Bingham referred to a citizens guide book to land use regulations and the nature of decision making by the Commission. He noted that citizens, the Planning Commission and Planning Division staff had invested thousands of hours and tax dollars on many public meetings with input from all interested parties to come to a consensus, the Planning Commission recommendations and conditions for approval are a compromise between the developers’ request to rezone and the public interest to maintain their health, safety and welfare, which were trumped by the developers desire for higher density. The Planning Commission’s recommendations were a representation of the public’s desire and as elected representatives the commissioners needed to represent the citizens by implementing the recommendations by the Planning Commission, that those were not a starting point for private negotiations. The arrogance of the developers was clear–by holding the citizens and elected officials hostage they desire to get significantly higher density zoning, the MOU is clearly against the desire of the Valley community at large, and the community has adopted a 3-acre minimum zoning in its General Plan to preserve its rural nature. Adopting the developers request was a slap in the face of every Valley land owner. He urged the commissioners to explore the reasoning behind their decision as they considered the issue.

Jody Smith, of Eden, referred to an editorial letter, reading a portion of it relating to Senator Bennett’s demise, which may have been related to his vote to bring all the garbage to Utah. She stated that the citizens were getting the “short-end of the stick” and that she will continue to fight for the cause.

Erin Stokes, resident of the proposed town, stated that she was upset because some of those speaking were not part of the Valley and those who live there would be stuck in a parcel of land between Wolf Creek resort, which was going under, and a resort that would be private or bankrupt because they cannot develop it. This would make their home values decrease. She felt this was the commissioners’ fault because they could have made a decision 2 or 3 years ago. Chair Bischoff asked what decision the commission had not made and she responded she did not see why this had gone this far.

Mike Zeleznick, of Huntsville, stated that there were less than 5,000 people in the Valley when was growing up, there are so many more now. Some years ago an EPA study indicated that the Valley could only support a certain number of people; this development is way above that. He addressed sewer problems for those living downhill from the development as well as traffic isses, indicating that if these very large developments are continued to occur, the river will have to be paved over.

Dan Schroeder, of Ogden City, representing the Ogden Sierra Club, noted he had already mailed comments to the Commission and would not read those. After hearing various points tonight, he felt the MOU was headed in the right direction, but was not ready yet, and asked the Commission to table the item to keep working on it. He wondered why there was no development agreement being presented tonight so the people could see the details. He shared Mr. Clarke’s uncertainty regarding the road. He noted that nothing had been said about protecting the wildlife management area and the Sierra Club was very concerned about the 9-mile long border between Powder Mountain property and the wildlife management area, particularly where private residential lots adjoin those public lands because there are always those who consider the public lands to be an extension of their own backyard and take their ATVs, snowmobiles onto those lands. Currently, that area is managed so that all public entry is prohibited each winter until April 15 and he cannot see how this could be enforced unless there is a buffer zone. The buffer zone would have other advantages such as a fire break, access for fire fighters, and could have ascetic benefits. He was concerned about what the mountain would look like from below if there are a lot of ridge-top homes and asked that the boundary be pushed back somewhat to improve the quality of life in the Valley. He noted there was no provision in the MOU allowing that language to be added later so now was the time.

 Dave Hartman, President of the Ogden/Weber Chamber, resident of South Ogden, stated that the MOU was a good first step in moving forward to help the development become a reality while providing assurances to citizens that they won’t be railroaded into something where they do not have any say, recognizing that these types of agreements cannot be perfect at the onset.

Steve Waldrip, of Eden, thanked the group of citizens that created a situation where citizens’ voices could be heard on this issue. As a real estate developer by trade, an attorney, and working at the Ogden Business Depot, he said that the MOU seemed to be a good framework and step in the right direction toward a reasonable compromise, however it left a lot to the imagination, the detail was so lacking that there was a great deal of room for potential misunderstanding and future disagreements, even in good faith and accepting the MOU as a binding document was a mistep. He suggested making it non-binding on both parties so they could continue in good faith, withdraw the lawsuit, and come back with sufficient detail where an informed decision could be made.

Keith Rounkles, Ogden Valley Planning Commissioner, brought a huge stack of paperwork to the podium relating to the resort ordinance and stressed that the Planning Commission did not make its recommendations blind but had been very thorough in their decision-making and had been commended by the Valley citizens, the Standard Examiner, etc. Mr. Rounkles noted that every time the Planning Commission had come close to making a decision on the resort ordinance, Powder Mountain would always come back wanting to make changes. The Planning Commission had recommended approval. He likes Powder Mountain but said it was too bad it had boiled down to them drawing a circle around some people and telling them that was the way it was going to be, and the citizens had no say. He read a portion of a newspaper article from Cache County stating that the attorney for WAH wrote a letter to Cache County threatening to sue and Mr. Rounkles noted that this was their pattern of doing business rather than trying to do what is right for the people. He stated that density was a problem and they cannot live with it. He hoped for people coming together and working through the issues.

Bill Dowell, an engineer, resident of Eden in the proposed Powder Mountain town area, said that the Ogden Valley General Plan had taken a lot of effort, that people had given up a lot to go to the 3-acre minimum zoning, the Planning Commission had worked very hard in evaluating the proposed rezoning, and there were two parts to this issue: 1) the unconstitutionality of the bill that initially allowed this petition, and 2) that the residents had no right to vote for the initial city council. He opposed having the town formed because it would negate any county planning and zoning, but with a high probability that the town would occur, he preferred the MOU, though it was not perfect, particularly with the high number of units being given. He agreed with removing Eden Heights from this MOU because it would practically be on the valley floor.

Richard Webb, of Liberty, stated that he did not want Powder Mountain to go out of existence and he had empathy for the residents of the proposed town. The Planning Commission had recommended 1,218 units, the MOU discussed 2,600 and he did not see where was the compromise. The developers’ $1.3 million figure over 25 years in today’s dollars was about $150,000 and not much open space can be purchased for that. The 1.5% transfer fee was highly questionable and the $20 million presented by the developers was highly overstated. He expressed concern over density, but particularly setting a precedent and other developers wanting the same. When these developers do not get what they want, they threaten lawsuits–they expressed empathy for the residents but yet will not drop the lawsuit–if they really felt uncomfortable with their position, they would drop it. The developers can buy the density they need but they simply do not want to; they want the county to give it to them. Other developers have bought the land and provided the open space. Additionally, there is a methodology which the county has supported–the Ogden Valley General Plan–and the citizens appreciate that and the Commission has been consistent. This item is a major inconsistency with the General Plan.
Chelsea Maughan, resident of the proposed town and city planner by trade, stated that she supported her neighbors who are parties to the lawsuit. She feels terrible that the issue had even reached this point. The investors held the residents hostage. She referred to the MOU section that stated WAH would pay for a traffic study after completion of Phase 1, stating that it was completely unreasonable to come for any project without a traffic study in hand or to allow the developers to build 1,477 before this study is completed; they can do it incrementally, but should not be allowed to build more than 150-200 without a traffic study and completing any of the recommended approvals.

Al Sheridan, of Huntsville, stated he did not want to see the character of the Valley change and supports the MOU because it eliminates the risk of the town, which he feels would be an absolute travesty. Mr. Sheridan said he was concerned with fairness. He saw no realistic chance that 2,800 dwelling units will be built there in his great grandchildren’s lifetime noting how the real estate market has significantly changed long-term, noting the large number of properties on the market across the U.S.A., including resorts in Utah, in danger of going out of business. Additionally, Powder Mountain has its challenges such as poor access, no amenities, the altitude and water issues.

Barbara Heward, a 55-year resident at the base of Powder Mountain Road, stated that the road is already a very busy one and people speed excessively. Children walk that road. The developer blames the road problem on UDOT, however, if they give 1.5% for improvements, they have the remaining 98.5% of the profit and can improve access and also buy the transfer of development rights.

Pauly Heward, of Ogden/former resident of the Valley, referred to the current recession. She noted that it is not just Powder Mountain Road that is treacherous and referred to the current death in Ogden Canyon, and with such a resort the roads would be so much worse. She does not want to see in her lifetime the serious problems this would create.

Alan Wheelrwright, of Eden, stated that the MOU was not a compromise, it was the developers getting what they want and he urged the developers to drop the incorporation petition and do a real compromise. He expressed concern with setting a precedent–every other developer wanting the same deal. The money they are willing to give for open space and the road is not sufficient–the amount of the road itself can cost $12-15 million and there is nothing left for open space. He referred to how dangerous the road is and the need to resolve the issue. He requested this item to be tabled until further study and would like the accident figures the developers gave to be confirmed because it is very dangerous road–people lose their brakes, etc. Even with the last big event people were warned strongly to slow down but still there was a death.

Sean Healy, of Ogden, stated he shared the general disgust at Powder Mountain’s tactics and opposed any increase in density entitlement beyond the levels of the legal process of the General Plan. He said that a new development in this wildlife management area was not compatible and there should be a buffer and language should be inserted into the MOU clarifying that there will be a buffer. He said that we were not here tonight discussing an MOU because of some ethical hesitation by the developers but because everyone has a practical interest in ending litigation.

Layne Sheridan, property owner in the proposed town, stated that if this becomes a town, the council–for which so far the residents cannot vote for–would have the right to encumber their properties with bond issues; they could go bust but the residents’ properties are still collateral for 20-30 years. A condo at the prices the developers stated will sit empty for a very long time. As a town, there would be total lack of control by the community on planning and zoning issues.

 Peter Turner, of Eden/not within the proposed town area, likes the Powder Mountain resort, which could be improved, however, he thanked the Commission for upholding the General Plan when Powder Mountain initially came with their proposal. He stated that the General Plan was a document of good planning and wisdom and should be upheld, it should be protected and he would be willing to pay a tax to protect it and the Ogden Valley. He expressed sympathy for the residents that were being “held hostage.”

Tim Hansen, of Huntsville, stated that this would not only affect the density but traffic safety with all the visitors coming through because the “resort” idea is to have a lot more people visiting. The traffic study needs to address how it will affect the entire Valley, not just Powder Mountain Road.

Ron Gleason, of Huntsville, stated that one of the reasons he and his wife settled in the Valley was the vision stated in the General Plan. He urged the Commission to adhere to that zoning framework, that they review what the Planning Commission approved with the 19 conditions; they had spent a lot of time on this issue. He asked the commissioners to look at the open space donations in the MOU: $100,000 when unit 1 is completed, $250,000 at unit 1,000 and nothing in between. The developers had said there may be 100-150 units completed, and in a linear regression it would be 50 years before there would be 1,000 units and $350,000 in 30-50 years is nothing. Transfer fees is the same issue–how many years will it take to turn over those units to actually receive those funds? Transfer fees need a lot more clarity as to the use of the funds, who makes those decisions, when and how–there is much room for disagreements because the MOU is very vague. There was zoning that ran with the land when the developers bought it and they should make it work. One point of the MOU states that the parties shall be bound to it, but in paragraph 5 it states that such stay shall remain in place until the development agreement is completed and executed or “until WAH has withdrawn from this MOU” and he asked if there is a loophole that people do not know about–why the developers still have a clause stating they can withdraw–that this is wrong and needs to be investigated. Section 2.1 states, “with the approved concept plan” and he asked what concept plan, who approved it and if the developers were picking and choosing from what they like of Ogden Valley. He stated that the process was wrong and asked that this be tabled and continue negotiations.

Kathleen Dowell, resident of the proposed town and party to the citizens lawsuit, thanked the commissioners for refusing to appoint a mayor and town council from the Powder Mountain’s representatives list. She thanked the citizens who have supported their efforts to stop Powder Mountain town. She sees the MOU as a way to keep oversight of the resort and surrounding area under control of the county. She agreed with others that a traffic study should be done first, that this MOU be non-binding as the parties work in good faith on the development agreement, and that the developers drop the petition to incorporate. She said that if the commissioners felt they could add those items to the MOU, then she asked that they table it to do so, but if not and negotiations would be stopped, then she preferred approving the MOU.

Shana Francis, of Eden, referred to the letter she sent the commissioners and asked whether there is a statute that allows negotiated rezoning. David Wilson, Deputy County Attorney, said that the terminology regarding negotiated rezoning may not fit in this case because that usually refers to when a developer comes with an idea already in mind before starting the rezone process. In this case the negotiations came in the middle of the process. After the incorporation petition filing, the residents of the proposed town requested some assistance and then Commissioner Dearden came into the process. It may apply to the cluster subdivision regulations. Ms. Francis asked what was the legal basis for the number of units under the MOU. Mr. Wilson said that was a legislative decision, the Planning Commission is only vested with authority to make recommendations and when the County Commission hears the issue, they take the action they feel is legitimate. Ms. Francis restated her question noting that each party wanted certain things and shed hoped this would not be an arbitrary and capricious decision.

Linda Brown, of Liberty, said she sympathized with those residents being held hostage and supported them, and that this issue affects all residents in the Valley. She could not imagine all those dump trucks, lumber trucks, etc., required to go up and down the canyons. With all those trips it would not be long before tires, brakes and/or steering fail, which is very dangerous. The weekend visitors will not find groceries and other necessities available. Skiers are quite often stranded up there for a night and sometimes for the weekend, but the developer is talking about thousands of people that would be up there and not able to get down that road. The developers blame UDOT and UDOT blames them. There is no way to get around, no way to widen Powder Mountain Road–there is a mountain and a river unless, as stated earlier, the river is paved over. Even with an alternate road through Huntsville, motorists still have to go up the mountain for the remainder of the way. The only feasible way, would be to have another access through Cache Valley.

Kimball Wheatley, of Huntsville, stated that there was no statement on the Cache Valley side of this item. At one point there were 987 units for Cache Valley and he asked if it was 2,800 total or an additional number on the Cache Valley side. He suggested adding everything that exists outside this rezone that is already zoned both in Weber and Cache county to see the true impact. He said that it could not be just 2,800 units because there were already hotels on the Cache Valley side and all should be considered. Section 8 of the MOU states that if parties are unable to reach agreement on the ancillary terms of the development agreement, they shall use standard/customary terms used in similar developments within the State, and as has been stated, this leaves a lot to the imagination. He said the litiginous behavior of the developers has been shown so far, and there probably is no standard version of this issue–no Powder Mountain Road, no 9-mile share with the wildlife management area, no highway going through the middle of a golf course, no Wolf Creek already zoned for 2,500 units sitting six miles at the bottom of a hill, but there are enough reasons this is a unique situation that he does not want to see the County Commission yielding to this MOU; it is not good for our county.

Kirk Langford, of Eden, supports development of Powder Mountain because he has been in the ski business all his life, however, he does not support how the developers have approached developing the mountain. Their rezone was approved and they received all the entitlements that came with the land and they knew what those were but felt they had the power to do the gainsmanship that they have done to get the free developments. This issue is not just about stopping the town of Powder Mountain, this is about giving density to someone who wants more than what they are entitled to. The General Plan has a mechanism where more density can be obtained, the developers need to buy the development rights and transfer them up onto the mountain. In 1998 the county down-zoned the Valley and all the large land owners gave up 2/3 of their development rights in order to have a community that could be sustainable as a resort in competition with other resorts; those people lost a lot of wealth. It is not ethical to take away development rights from someone to give them away to someone else, even if they ask nicely, which these developers had not. If this density is granted, it will remain with it for ever. This is not the way to proceed and the MOU is incomplete. He said that fairness was an issue and other developments did not get double their density.

Laura Warburton, of Huntsville, stated that she has examined this issue very carefully. She asked if there was any way the Commission could to make the MOU better, with all the information they had, to do it, otherwise, in her opinion if the town came to be it would be for the worst. She asked the Commission to make the best decision that would be best for everyone.

Kevin Parson, of Liberty and Ogden Valley Planning Commissioner, noted that they spent a lot of time on this issue, that the developers have the ability to buy those development rights, that if there isn’t a resort that will drive that market, this will all be for nothing. The concept of having a golf course up there and how much herbicides/pesticides they will have to dump into that dirt to make it green is unreal. The Americans with the highest cancer rates are farmers and greens-keepers, and that will be up above the residents. He asked that this be tabled to come up with better defined solutions.

Sharon Holmstrom, of Eden, told the commissioners that the anger that they have heard is not directed at them, it is infused anger at a developer who would try to blackmail their community, who would hold citizens hostage and would not withdraw his petition. She was at the meeting with the legislators and when Commissioner Dearden was commissioned to work out a resolution in good faith, he had done that; the developers had not. To act in good faith they would have withdrawn the petition, then they would have come to the table to work on a development agreement, and when they did that they would be met with more willingness by the community. In addition to the traffic study, many residents feel that there were serious considerations of water and air quality associated with past Powder Mountain applications. Traffic to Powder Mountain will cross the Valley and go up Ogden Canyon which is different than if it came up through Morgan County. She said that the developers stands to create probably 12 times the equity value they had when they purchased this property.

Marcia Rasmussen, of Eden, stated that the road was downright scary, that the incorporation petition is not right, even though it snuck in under the law, and asked the Commission to table this to have additional time to reconsider the MOU and the intention of truth.

Dan Van Zeben, resident of the proposed town, stated that when they began this fight 2½ years ago they had three objectives: 1) not to have a town, 2) to protect the front range of the Valley and 3) to see that Powder Mountain was a successful development. This issue has been heard for 2½ years and it is time to move forward with the MOU and there are some good suggestions that can be put in the development agreement. There are a number of items that are still necessary to be worked out and can only be accomplished by continued discussion. He urged the Commission to accept the MOU.

Belinda Rounkles, of Ogden Canyon, stated that the Planning Commission had been very fair in their recommendations, and they considered a wildlife buffer zone. Transfer of development rights are well thought out, but to just hand the developers density would be the demise of that resort ordinance. They are for the good of everyone. She read from a newspaper article on a traffic study by WAH estimating that the number of daily peak season trips to the mountain would skyrocket from 1,500 in 2007 to 15,000 in 2019 when the resort would be in full operation, which was terrifying. Currently, the traffic in Ogden Canyon is heavy and it is difficult to get onto the road just in the morning commute, not to mention weekends.

Tracy , Eden, stated that people are more at risk skiing than traveling that road. He is not concerned with the density because those would be secondary homes, people would likely spend a few days there out of the year and stay on the mountain, not travel the road every day. People want the developers to surrender all their rights and don’t offer anything to the developers in return. He favors the MOU.

Gregg Greer, of Eden, President of Powder Mountain Ski Resort, stated that he worked with the previous owners/developers and currently worked for the managers from Pronaia. The previous owners would go after as much density as possible routinely discussing 6,000 and 10,000 units. The current owners have listened and have made changes. People being able to stay on the mountain would be a benefit, not only for traffic, pollution and resource issues but for the success of the resort. Because of his home’s location, he does not want to see huge amounts of traffic but needs to see improvements, and the MOU begins the process toward the development agreement.

David Barilec, of Huntsville, said that Powder Mountain should be developed and could be improved but should be done according to the unit numbers ascribed the property when the developers bought it–which they knew but thought they could come and bribe their way to more–and current zoning ordinances, which are well thought out. He came from other resort towns that got too big and ugly and are difficult to drive in. He expressed concern with setting a precedent with the density.

In response to some of these issues, Mr. Pierce said that the wildlife buffer zone had been discussed and believed it would likely be included in the development agreement. He stated for the record that they are in agreement that there should and will be a wildlife buffer zone. He believes that through clustering, they will be able to eliminate ridgeline homes. He noted that the legislature passed a law that allowed for the incorporation process and the prior developers made a decision to take advantage of that law. The MOU is an opportunity to resolve that issue. He stated that this would be a very long, well thought out process. They did not anticipate average price units to sell into the next 5-7 years but at that point the prices should change. They were not going to build a lot of units today and leave them vacant. He said that historically one locates property that appears to have viable development prospects and often then modifies the entitlements. Developers look at the cost of infrastructure (in this case a local fire structure will have to be built on top of the mountain, water, sewer buildings, etc.) and they determine the cost and how many units they need. He said that at the time that zoning was sought, the resort zone had not yet been developed. He said that they respect the transfer of development rights process and Eden Heights would be utilizing it. They have not located anywhere in the country where the TDR process has worked effectively because the cost of the TDRs become so excessive. He thanked the commissioners, stating that this has been a lot of work, that people asked for this item to be tabled but this process has been going back and forth for about six months to reach the best solution, though the developers are not happy with it, they wanted to have about 4,500 units.

Commissioner Dearden said that the Planning Commission sent the rezone to the County Commission with the 19 conditions, such as the wildlife buffer zone, and he asked what was their position on those. Mr. Pierce said that largely they were in agreement that the conditions are reasonable and they were willing to work through all those in the development agreement process. One of the conditions of the MOU is that infrastructure be provided, which would be water, sewer and other issues. Commissioner Dearden asked about removing the binding stipulation from the MOU and Mr. Pierce said that the binding nature was imperative noting that the parties had litigation pending and whichever party wins may have difficulty standing by the MOU if it is non-binding. The MOU stops the litigation and the incorporation mid-flight, before a court decision is made that may dictate for either party. Commissioner Dearden asked about Cache County and Mr. Pierce said that the zoning petition had been withdrawn for Cache County and that portion of their development would likely require a secondary access road through Cache County. They have no immediate plans to seek zoning there.

Commissioner Zogmaister asked if the developers would be willing to move up the road study and Mr. Pierce responded that they had looked at the number of secondary homes and the number of primary residences and came up with a reasonable amount of traffic that the road can currently handle. The vast majority will be secondary homes, probably 10-15% occupancy, and limited traffic. Part of the commercial development will be onsite; it will be very limited but enough to keep some of the residents on top of the mountain.

Chair Bischoff asked how many of all the items presented tonight were appropriate for the MOU and how many for the development agreement and Mr. Pierce stated that all were appropriate for the development agreement. When preparing the MOU some items had been removed because they were too specific to include at this time. The intent was to put an end to the incorporation and the litigation in a timely fashion and go forward with the development, that this was a resolution to those issues.

Chair Bischoff said that the other concern was that to approve the MOU opened the door for anyone else to request additional density, but he had never seen, nor believed he would ever see, a development with this same set of criteria. Mr. Pierce agreed, and he reiterated that all the factors were not present in the MOU; they have to be examined and will go through the zoning process.

Chair Bischoff thanked everyone for their comments stating that it had been very informative.
3. Commissioner Zogmaister moved to adjourn the public hearing and reconvene the public meeting; Commissioner Dearden seconded, all voting aye.

4. Discussion and/or action on a Memorandum of Understanding (MOU) between Weber County and Western America Holding LLC regarding a proposed re-zone of certain property more commonly known as Powder Mountain and establishing the structure for a development agreement to complete the proposed rezone, to settle the pending litigation and to provide for the withdrawal of the Petition for Incorporation of the Town of Powder Mountain - Contract C2010-131

Chair Bischoff said that it was interesting to analyze and listen and that most of the discussion was centered around the MOU and only references made to the development agreement. That is why he had asked how many issues can be addressed in an MOU, to determine if the process could start, making sure the development agreement is developed in a way that addresses the concerns that have been raised, such as the transfer fees, the infrastructure, water, roads, etc. The other big concerns seem to be density and that residents did not want a town. He said that if the county does not enter into the MOU, then the developer can continue with the incorporation, and it was a risk (if the town is created it would have all the control). This MOU puts the county back in the zoning process and a part in how the development occurs.

Commissioner Zogmaister said that there were not too many issues brought up tonight that were new or that the Commission had not already considered. In her opinion this MOU is the vehicle that brings all of these items back to the table to be discussed, which are all important and should be considered. It would not bind on too many things and would leave so many more for discussion, such as the road, which still concerns her. It was prudent to move up the road study to help alleviate those concerns, but she did not know if that can be accomplished during the development agreement. There is a section in the MOU that says no density shall be allowed unless and until WAH demonstrates the ability to provide water, sewer and necessary infrastructure and to Commissioner Zogmaister this is a protection that was crucial in order to move forward. Additionally, the natural restrictions will come into play and the developers may find there are not enough resources for all that they want to do on top of the mountain. She felt the MOU was only a starting point and there is a huge amount of work ahead and opportunity to get some issues addressed fully and in detail. She still has concerns but also has confidence in the ability to be able to negotiate.

Commissioner Dearden expressed appreciation for so many coming to this meeting; it showed real community spirit to be here for almost three hours. He noted that it had been a very long three years and he has listened to a lot of people. He went almost everyday this year to the legislature and spoke with the leadership of both houses, taking some of the Eden residents along to talk with the legislators about Representative Froerer’s bill. A the first meeting, the parties were far from agreement, between the first development agreement–which could have given the developer up to 10,000 units–and by January it had come down to 4,000 units. That density would be determined by the city council if they incorporated. The road would not change if there was a town and there would be the same traffic. He noted that there was another bill by a Senator that would have given the developer the ability to circumvent the whole current process–not have to go to the Planning Commission, etc.–and he took some citizens to the legislature and they killed that bill. He pointed out that if this became a city, there was potential for a lot worse outcome than the MOU. He has spoken with residents of Wasatch County, where three towns were formed under that former legislation, and every one is having trouble in being viable.
Based on the information the Commission has received and carefully considered, the fact that there are many items within this MOU that meets the General Plan, which addresses the desire for expansion of recreational opportunities, that the MOU addresses preserving open space, keeping the units off the Valley floor, and that it requires negotiation for a development agreement, Commissioner Zogmaister moved to go forward and approve the MOU, Contract C2010-131, Binding Memorandum of Understanding with Western America Holdings, LLC; Commissioner Dearden seconded with a correction to Section 5 of the MOU by deleting the phrase “or until WAH.” All voted aye.

G. Assign Pledge of Allegiance & Thought of the Day for Tuesday, June 8, 2010, 10 a.m.

H. Public Comments: None

I. Adjourn
Commissioner Dearden moved to adjourn at 9:05 p.m.; Commissioner Zogmaister seconded, all voting aye.

Kenneth A. Bischoff, Chair
Weber County Commission

Alan D. McEwan, CPA
Weber County Clerk/Auditor