Analysis: Hideout annexation caps unusual approval process, divergent in many ways from Summit County’s |

Analysis: Hideout annexation caps unusual approval process, divergent in many ways from Summit County’s

In late 2019, Nate Brockbank and Josh Romney submitted an application to Summit County to develop land on Richardson Flat, but the proposal never made meaningful progress through the county’s vetting process and now lies dormant.

In the ongoing Hideout annexation saga, that detail didn’t receive as much scrutiny as did the commotion, lawsuits and name-calling from officials.

But if the application had proceeded through Summit County’s planning process, the future of Richardson Flat would likely have been very different.

Instead of the long, deliberate development approval process in Summit County that often appears to be an uphill battle for developers and can take years, Hideout’s approval of the Richardson Flat project took months. And, though the rough concept was long in place, the details only came together in the final days.

Through it all, with the specter of tens of millions of dollars of environmental cleanup just feet from the proposed new town center, the developer’s attorney played a commanding role in the deliberations. He has decades of experience in seeking and winning development approvals and claimed multiple times to have written parts of the state code that apply to how land is used.

The agreement the town entered into with the developer last week may have repercussions that reverberate for decades. Other similar agreements are routinely debated in lawsuits and this document may well be scrutinized by lawyers in the future who are working for clients trying to eke out as much value as they can from Richardson Flat.

Only time will tell the quality of the project the town secured for itself, the strength of its protections against financial liability and the unity of vision between a developer seeking residential development and a town desperate for businesses.

If the project ultimately is built — something that is not assured, given pending lawsuits and a possible referendum — the final result is certain to be different than if that 2019 application was still winding its way through the county’s planning office.

Hideout’s annexation and its strange beginnings

Hideout’s annexation of hundreds of acres of Richardson Flat was unusual from the start.

It was born of seemingly tailor-made legislation passed on the last night of the Legislature’s general session in March that has since been repealed.

No one at Summit County seemed to notice the change in state code, or what it meant, until a July meeting when the Wasatch County town revealed it wanted to control land within Summit County’s borders.

The County Council has a lobbyist on retainer, it receives regular updates about the Legislature and county officials frequent the capitol during the general session. Still, the legislation slipped by.

Hideout town councilors unveiled the plan to annex the land for the first time in July and voted to begin the process after minimal discussion and public comment.

A 4th District Court judge later indicated the lack of meaningful dialogue in that meeting, along with other possible open meetings law violations related to providing notice of the meeting, played a role in her decision to bar the town from operating under the agreement passed that day.

The town restarted its annexation bid after that court ruling and a botched virtual public hearing, and has attempted to increase transparency, including posting documents online and creating more detailed agendas.

In the days leading up to last week’s final annexation vote, the Hideout Planning Commission and Town Council spent more than a dozen hours negotiating the development agreement and the project itself in public, seemingly on the fly.

Hideout Mayor Phil Rubin pushed back on the characterization that the town was rushing things.

“We’re not making this stuff up as you go,” Rubin said in a recent interview.

Still, the final vote came three days before the deadline when the annexation the town was pursuing would once again become illegal.

As Hideout’s process played out, the development plan morphed in real time from something on the scale of another Kimball Junction — which Brockbank, the developer, said he never intended to build — to a mixed-use, mostly residential project, even though town officials have insisted their motivation is to provide commercial services its residents already sorely need rather than more residential development.

Brockbank’s attorney flatly told the Town Council 600 residential units was what was needed to make the project commercially viable, and that’s the amount included in the agreement the Town Council ultimately passed. It represents a reduction from the 836 units that Brockbank previously sought, and the town secured more commercial space than the developer initially included.

The latest public discussions were nimble and reactive. When town officials said they didn’t want a type of attached townhome and preferred larger single-family lots, for example, the developer said he would get it done, and did.

Many times town councilors or planning commissioners requested a change to the proposal and it was granted, making it appear at times that officials were creating a wish list for what they’d like to see.

While debating the development itself, the Town Council also negotiated a master development agreement, and authorized the mayor to enter into that agreement when it voted to annex the land.

Development agreements are often hammered out behind closed doors, with the municipality’s legal team negotiating with the developer’s, and can take months to finalize.

In Hideout, town councilors reviewed and revised the document in public for hours and, presumably, behind the scenes for days or weeks. The real-time negotiation provided a measure of transparency in a monthslong process that had been notably light on public deliberations.

Last-minute changes in the development agreement include apparently crucial items like the amount of time the town is protected from costs associated with land contamination; the number of homes and the size of businesses that may be built on the land; and when trails, parks and commercial buildings will be built.

These additions may have ramifications for years to come. If an unforeseen event necessitates costly environmental remediation, for example, legal battles may be fought involving the development agreement to determine whether the town is on the hook.

Some aspects of the agreement saw in-depth scrutiny, like when in the process the commercial development and trails would be built, while other aspects, like the project’s zoning, were barely mentioned publicly. The draft Annexation Master Development Agreement includes multiple references to a zoning map, though one is not attached. The developer’s planner presented one at public meetings and said he modified it with the town’s planner, but officials did not publicly wade into detail on that issue.

After a sprint to the finish, the proposal is in a period of suspended animation while court cases wind their way through the legal system and town residents collect signatures from their neighbors to put the annexation on the ballot.

Developing in Summit County

Hideout’s rapid vote and late-night public negotiations stood in stark contrast to the deliberate nature of proceedings in Summit County.

Summit County officials have spent countless hours on what appears to be the driest of subjects: updating and bolstering the county’s two development codes. It’s those codes, however, that determine what kind of development can be built in the county, and they must be robust enough to survive legal challenges.

Millions of dollars in potential development profit can entice lawyers to craft proposals aimed at the weak spots in a code. In Coalville, for example, a new gated golf-course community includes a plan for 303 nightly rental units, many of which would be in stand-alone cabins. That city’s code is silent on the issue, and the question of whether or not the cabins are allowed has been sent to a state ombudsman.

The latest Snyderville Basin Development Code includes a ban on new entitlements unless the project also provides a compelling countervailing public interest, which has often recently come to mean affordable housing.

Detractors of the process in Summit County — including some involved with the proposed Richardson Flat project — have complained about what they claim is anti-growth sentiment at the county and the slow pace of its approval process.

The Summit County Council has in recent meetings, for instance, spent hours debating whether a resident could expand the deck on his condo and whether to grant a special exception for a huge new barn in Highland Estates.

In both instances, the council went round and round with the county’s attorneys and the applicants and eventually punted the decision to a future meeting. That kind of governing is slow, but officials contend it is a result of the litigious nature of land-use rulings. Such decisions likely have broad implications and set precedent subject to district court scrutiny and potentially millions of dollars of consequences.

It is routine to see lawyers arguing in front of the County Council cite precedent from decisions that body made years ago, and county officials are loath to expose the county to future lawsuits — and their associated costs — by appearing arbitrary or capricious.

New developments, new zones and new development processes receive the same or more scrutiny from officials and the public, with public hearings for contentious items like a new road regularly drawing participation from multiple neighbors. All of that takes time.

In addition to process differences, the substance of what Hideout officials wanted in the project diverged sharply from what one often hears in Summit County meetings.

There was no mention of affordable housing early in the process, a routine point of emphasis in the county, nor was there mention of the ample open space in the proposal. In both cases, apparently, the developer’s planner worked with the town’s planner to craft those elements into the proposal.

Some of the requests from Hideout officials included fewer multi-family homes, larger single-family lots and the ability to have drive-through restaurants. One town councilor repeatedly requested car-accessible commercial businesses, while for years county officials have preferred nodes of development that cater to alternate transit options to alleviate the traffic and environmental impacts of cars and parking lots.

Summit County’s land-use decisions have been challenged repeatedly in court, and it seems as though that experience guides its careful and deliberative protocols. Officials have also likely been informed by previous mistakes that have resulted in sprawling development that does not comport to what community members want for the area.

Opening the door to risk?

Brockbank and his attorney Bruce Baird have decades of experience shepherding developments through approval processes, while Hideout has few full-time employees. The mayor has driven the snow plow to relieve public works staff, for example, and the town has consultants rather than full-time employees in functions including its legal, planning and engineering operations.

That is not unusual for a town of Hideout’s position: It has around 1,000 residents and is only a dozen years old.

But the stakes for the town in the negotiation appear huge, with the prospect of millions of dollars of environmental cleanup if the project goes wrong or something unexpected happens. The new town center is proposed to be adjacent to a mine-tailing storage site with Superfund-level contamination.

The town’s interests have been represented by its mayor and town councilors, as well as a Eddington, who is a consultant hired as town planner, and town attorney Polly McLean, who was also hired as a consultant and came on board in recent months.

Both have extensive experience in their respective fields and previously spent years in similar roles with Park City.

Baird has taken the lead on the negotiations in public meetings, drafting the development agreement and advocating for Brockbank’s interests. His role appeared to lessen as town councilors pushed back on some assertions in the final and penultimate public meetings.

In an interview Thursday, Rubin said he was confident in the town’s representation and disputed any notion that the town was overmatched at the negotiating table.

“The town has multiple legal counsel supporting its perspective and views on this,” he said. “Mr. Baird is presenting a document that we then mark up, adjust and modify to suit our needs. … We know who he’s there for and we know who we’re there for.”

Development agreements are complex documents that govern the rights and responsibilities of different parties in a project. The agreement for the Richardson Flat project — now called Silver Meadows — runs to 53 pages and includes sections covering important topics like what happens if the developer defaults.

Some development agreements in Summit County and Park City are hundreds of pages long or more and have been the subject of legal battles long after they’ve been signed.

Once documents like the development agreement exist, lawyers can and do argue over what they mean years into the future. That’s directly impacted this situation, as Hideout’s annexation area is roughly half the size that Brockbank first suggested due, in part, to claims on land in western Richardson Flat from a 25-year-old development agreement with Park City.

Summit County officials are no longer in charge of the future of Richardson Flat, assuming last Friday’s annexation resolution survives an upcoming town referendum effort and the multiple court battles that could stretch for years. They might want to see the land remain undeveloped, but now that’s up to Hideout.

Whatever ends up built on the land — whether it includes the chairlift to “Richardson Peak” or the Trader Joe’s that some want to see — it will have been the result of a very different process than if it had been vetted by Summit County.

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