Senator revisits crucial ’99 bill
After seven years, Sen. Al Mansell, it seems, is not satisfied with what was then his partial rewrite of Utah’s development rules.
Last week, the Republican from Midvale unveiled his Senate Bill 170, a sweeping piece of legislation that, if passed and then signed into law by Gov. Jon M. Hunstman, Jr., would greatly limit a local government’s ability to regulate development.
Among the consequences of the 2,448-line bill is one that effectively bars citizens from holding a referendum on many development-related decisions made by a local government. Under the bill, instead of planning commissioners and elected officials, staffers will make lots of those decisions administratively, or without the need for a vote by a legislative body. The staff-level decisions cannot be challenged through a referendum.
That is especially notable to Parkites who followed the divisive 1990s-era Flagstaff Mountain Resort discussions.
In 1999, Mansell, who was appointed to the Senate in 1994 and first elected in 1995, took a side in the Flagstaff feud, favoring the developer, United Park City Mines. The mining company that year was fending off challenges to the project from Citizens Allied for Responsible Growth, a development watchdog then led by Dana Williams, now the second-term mayor of Park City.
Mansell, a real-estate broker, in 1999 waited until the last hours of the Legislature’s session before introducing a clause into another lawmaker’s bill that significantly tightened a person’s ability to challenge a municipality’s decision to annex land.
The glitzy Flagstaff project, on the slopes of Deer Valley Resort, hinged on Park City’s ability to annex the land, a 1,750-acre stretch of mountainous terrain in Empire Canyon that, although owned by the mining company, was coveted by hikers, mountain bikers and skiers. The acreage was in unincorporated Summit County but UPCM preferred that it be developed within the city limits.
The opponents were outraged with the mining company’s development plans, particularly a high-altitude neighborhood of houses that had been dubbed ‘Pod D,’ and the sides spent much of the 1990s facing off in Planning Commission and City Council meetings.
Frustrated, the mining company halted its discussions with City Hall, started talks with Summit County and, after little progress at the County Courthouse, re-entered negotiations with the city government. In 1998, after what the opponents saw as a hurried second round of talks with City Hall, the City Council in September of that year approved development parameters for Flagstaff.
The local government did not complete the annexation at that time and the citizens group investigated alternatives for challenging the anticipated approval. With assistance from Rocky Anderson, then a private-sector attorney from Salt Lake City who is now the capital city’s mayor, CARG discovered that the annexation could be put to Park City voters if it could collect enough signatures.
State law at the time allowed a referendum on the annexation if the opponents could collect signatures from at least 20 percent of the number of people who voted in the previous gubernatorial election, in 1996, when 2,862 Parkites cast ballots.
Mansell’s clause upped the benchmark to 35 percent, meaning that, instead of 572 signatures, the Flagstaff opponents were required to collect 1,002. The 1999 bill easily passed both the House of Representatives and the Senate. Park City’s legislators were split that year. Beverly Evans, a Republican senator from Altamont, cast a ‘Yea’ vote and Rep. David Ure, a Kamas Republican, voted against the bill.
Evans explained afterward that the 35 percent benchmark was appropriate and that elected officials are voted into office to make decisions like annexations. Ure acknowledged afterward that he cast a ‘Nay’ vote because he was unfamiliar with parts of the legislation and he opposed other portions. When he voted against the bill, he was unaware of Mansell’s clause but said afterward it "burns me and my constituency."
After the 1999 legislation passed, Mansell told The Park Record that CARG’s planned referendum petition was unfair and the group was readying to "interrupt the lawful practices of a company, where they’re following the rules." He said in the 1999 interview that the 35 percent benchmark was appropriate.
Both the mining company and the development watchdog were displeased with the legislation.
UPCM was annoyed that Mansell’s bill did not ban a referendum, with Hank Rothwell, then the mining company’s president, telling the newspaper, "No, I’m not happy with it. We don’t believe, still, the existing legislation allows for a referendum . . . The Legislature didn’t eliminate the opportunity for a petition."
During a CARG open house held just hours after the bill passed, Williams called the legislation a "sleazy" attempt to squash the rights of citizens. Anderson, the watchdog’s attorney, said in an interview that Mansell’s clause "was clearly a favor done, and probably a personal favor done, with Park City solely in mind" and described it as "special-interest legislation at its worst."
After the bill was made law, the mining company and Park City completed the annexation. But, under continued pressure from CARG and with continuing potential of a referendum, the mining company agreed to a set of concessions that the development watchdog endorsed, avoiding a petition drive to put the annexation on the ballot. Flagstaff, which was later renamed Empire Pass, is under construction in Deer Valley.
Mansell’s new bill widens the 1999 legislation by tightly restricting a government’s control over development, stipulating, for instance, that a government cannot designate zoning that materially diminishes "the reasonable investment-backed expectation of the property’s owner" and allowing a court to find that a government decision was arbitrary or capricious if it was based on what is described as "public clamor."
City Hall and other local governments are disgusted but firms like Anderson Development, with interests in Silver Creek, are supportive, making Mansell’s bill a pivotal piece of legislation for this year’s session.
On Tuesday, responding to the criticism, Mansell pledged he would revise the legislation, Josh Hurst, Mansell’s legislative intern, said. Hurst was unsure what parts of the bill would be changed and he would not predict when the alterations would be made public.
The bill is currently assigned to the Senate Business and Labor Committee. The committee has not yet voted to forward the legislation to the full Senate. The bill could increase costs to local governments to change computer systems but there is no fiscal impact to individuals or businesses, the state’s fiscal analyst has determined.
Mansell did not return phone calls seeking comment.
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The large fireworks shows scheduled for July 3 and July 4 at Park City Mountain Resort have been canceled because of worries about fire risk and drought conditions.