Right to vote on incorporation serious
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No comments [ Add Comment ]By BILL SIEGEL
Guest commentary
The Ogden Valley Planning Commission approved the Powder Mountain rezone Dec. 10. The approval included 15 well-thought-out and -reviewed conditions. I was pleased with the outcome. As with any legislation, both sides were happy and unhappy at the same time. We must have gotten it right.
I had read the text of House Bill 466 and the problems it had been causing in Wasatch County. I followed these petitions to incorporate towns with great interest all the through the debates with Powder Mountain. I stored this in the back of my mental hard drive and really believed it would raise its ugly head based on the people we were dealing with. What did happen with Powder Mountain using HB 466 was a preconceived plan to bypass the Ogden Valley Planning Commission if the recommendations were not what developers wanted. Like a colony of ants, they found a way into what they want. A flawed law provided them another direction. A means to end, you may say.
Powder Mountain used a law so flawed constitutionally that the Legislature wasted no great amount of time correcting the mistake to avoid litigation against the state that lawmakers knew would come. The mistake the Legislature made was not making the law retroactive to protect voters' rights.
Does this mitigate the Legislature or the state's liability in taking the rights to vote on the incorporation of the 160 residents for the proposed town just to avoid a lawsuit from the developers of Powder Mountain? Hardly. The possibility of a lawsuit from the "Powderville Six" against the state is very real and should be eyed by the state closely. The quote from Lisa Davis, spokeswoman for Powder Mountain, says it clearly: The owners were not concerned about the possible disenfranchisement or about the possibility the law might be unconstitutional.
Article XI of the Utah Constitution says, "Cities and Towns shall not be created by special laws." The Legislature did exactly that with HB 466. It created a special law favoring a large landowner or group of landowners that allowed to be overrun and bypassed the right guaranteed to us all under the 15th Amendment of the U.S. Constitution. All other incorporation processes in the state have allowance for a vote by the affected residents to approve or deny the incorporation. The right to vote on something as serious as incorporation should never be treated with such triviality. To be permitted to have a say, a voice at the local level of government, is the most effective form of our voters' power we have.
If you do not believe the Legislature was absolutely convinced of the unconstitutional issues of HB 466, the impact and cost it could have to the state, look no further than the pathetic action the Legislature took on property tax reform. Since this is basically an area they cannot be held accountable for no action through a means of litigation. Another issue here is why the Weber County attorney's office did not challenge the flawed HB 466 as it pertained to the voting rights of Weber County residents.
Now the Weber County Commission has tabled a decision on the Powder Mountain incorporation to allow the developer time to "work something out," to possibly come up with a compromise with the affected homeowners to allow a vote on a local government. I ask the commission and the residents, under what law? HB 466 does not provide for a vote, the County Commission and the developer do not have the ability to provide for a vote. It is not for the county to try to reach a compromise on this issue. It is the responsibility of the state to accept what it has done to usurp the voters' rights and take its lumps in court.
If this developer must wait on the courts to decide the constitutionality of HB 466 as it applies to their petition and the effect on the 160 residents, so be it. Who will stand before any court to argue for the state in support of taking a taxpaying citizen's right to vote? After that decision, the way may be clear for the process to continue on the development. If not, the process with the planning commission will start again, since Powder Mountain basically rendered the rezone petition null and void. By challenging the constitutionality of HB 466 in court, the "Powderville Six" may have their own "means to an end."
Siegel lives in the Ogden Valley.
