Utah’s incorporation law is unconstitutional, votes for Summit County ballot measure won’t count, judge rules

A contentious township fight in rural Summit County will not be decided by voters next month, after a Utah judge ruled that the state’s incorporation law is unconstitutional because it deprives some property owners of the ability to remove themselves from the town boundaries.

Because the law is unconstitutional, Judge Matthew Bates ruled Tuesday that a vote on whether to create the town of West Hills — which proponents envision being built on rolling cattle pastures just outside of Kamas — is void and cannot be considered in the upcoming municipal election.

In the case of West Hills, the window to request exclusion closed 30 days after a public hearing on the proposal. Landowners who were added to the proposed boundaries after that exclusion period and who did not want to be part of the township were not given an opportunity to opt out.

“If the Legislature is going to grant some landowners an option to seek exclusion, it must allow similarly situated landowners an equal opportunity to exercise the right,” Bates wrote.

While eligible voters will see the West Hills incorporation measure on their ballots, County Clerk Evelyn Furse said Tuesday, barring any intervention from the judiciary, a tally of votes on that measure will not be reported after the election.

Sponsors of the new township say they will likely appeal the decision.

“It’s obviously disappointing a judge would make this ruling on the eve of ballots being mailed out,” attorney Derek Anderson, the sponsor of the proposed township, said in a statement. “West Hills proponents have followed Utah law and statutes and will most likely appeal this decision. Proponents have merely asked for flexibility on their land only to be chastised and slandered by outsiders with an agenda to stifle property rights.”

The plaintiffs in the case also anticipate an appeal, but for now are happy with the judge’s ruling.

“We’re very pleased with the decision, but this is not changing our game plan and our strategy between now and election day,” said Craig Savage, a member of the Kamas Valley Preservation Association, which is opposing the incorporation.

Most of the land targeted for incorporation used to be the Garff Ranches, an expanse of rolling hills that is now sandwiched between the towns of Hideout, Francis and Kamas. In the early 1990s, the ranch was partitioned into 40-acre lots, and while people could build a home, cattle could still roam and graze until they were moved up into the Uintas for the summer.

Anderson argued the township would give residents more flexibility and local control over land-use decisions. He submitted an initial plan with relatively contiguous boundaries straddling State Route 248 in 2023.

But after an initial public hearing, about 50 landowners exercised their right to be excluded from the township and a new map was drawn. But that map was rejected by the lieutenant governor’s office because it fell three residents short of the 100 people required to form a town.

The third attempt at a map, which added residents like Jen McCaffrey and others, included long peninsulas of property and carved-out portions of unincorporated property almost entirely surrounded by what would have become West Hills.

Summit County’s development director critiqued the plan, saying it lacked an obvious town center and included “somewhat arthritic fingers” of property that would make it more difficult to provide services.

McCaffrey and others sued, arguing that they should have had the same opportunity to exclude their land from the township as residents who were included in the original iteration.

Anderson argued that the exclusion deadline is necessary to provide certainty to proponents and to voters and to keep the boundaries from constantly morphing.

The judge agreed with the plaintiffs, ruling that the state’s incorporation statute violates the Uniform Operation of Laws provision in the Utah Constitution, which generally states that similarly situated citizens need to be treated similarly under the law.

“The disparate treatment is manifest,” Bates wrote in his opinion. “The specified landowners are identical in all relevant respects. Yet they are treated differently based on one arbitrary factor: the timing of the incorporation sponsor’s decision to include their property in the proposed boundaries. Those included from the start are granted a significant statutory right, while those added after the first public hearing are denied it entirely.”

Had the ballot measure gone forward, as few as 47 voters, by some estimates, would have decided the fate of West Hills. Many of the property owners, like McCaffrey, have second homes in what would have been part of the township and could not have voted in the election.

The proposed incorporation had worried some residents like DeEtte Earl, who, along with her husband, bought their property in 2005, knowing that growth would be restricted. Earlier this year, Earl said in an interview that she was concerned that the land surrounding her home would be subdivided and built up, changing the rural lifestyle she cherished.

Nathan Anderson, who is not related to Derek Anderson, told The Park Record earlier this year that for him, it comes down to being able to decide what to do with the land he owns.

“It’s still your property,” he said. “No one can tell you to develop it if you don’t want to. No one can tell you to put a fence around it and exclude the cattle from grazing, just like they do now. It is up to you. However, as it stands today, I am being told what I can and can’t do. … This gives us a path to control our own destiny.”

Note to readers • This story is available to Salt Lake Tribune subscribers only. Thank you for supporting local journalism.