The Grand County Commission on Tuesday night denied a permit for the Kane Creek development’s proposed wastewater and culinary water system, setting the stage for ongoing legal parrying over a high-profile development proposed for the Colorado River corridor southwest of Moab.
The project’s developers are “of course” going to appeal the decision, said attorney Bruce Baird as he left Tuesday’s meeting.
The commission voted to deny the permit 5-2 after a relatively brief 20-minute discussion, a far cry from their lengthier back-and-forth three weeks ago when they ultimately voted to table the permit, which is required for the development to construct a wastewater treatment plant and water storage tank.
Commissioners argued they had to deny the permit as it proved inconsistent with the county’s general plan, adopted in 2022. Per state statute, new public utilities must conform with such a plan if a county has one.
The statute, Utah Code section 17-27a-406, “basically doesn’t give us much choice,” said Commission Vice Chair Kevin Walker after motioning to deny the permit. “If we think that the proposed public utility is not consistent with the general plan then we have to turn it down, even if we think it would be a good idea,” he said.
“I cannot in good faith say this conforms with our general plan,” Walker later added.
For example, county staff had identified a policy in the document – called the General Plan 2030 – that directs the county to not extend water or sewer services outside of areas already served by public utilities unless necessary for public safety or consistent with an adopted growth strategy, which the county does not have.
“We found multiple inconsistencies with the development of a major utility in the proposed location,” said Grand County Planning Director Elissa Martin.
According to the staff report, other parts of the general plan also suggest a major utility is inappropriate for the location because of Kane Creek Boulevard’s road designation and its distance from major commercial corridors.
The roughly 180-acre property eyed for the development is mostly zoned Highway Commercial yet lies in the largely undeveloped Colorado River several miles southwest of Moab.
But Baird, representing the Kane Creek developers, contended that the county’s general plan is ambiguous and inconsistent. Per state law, he said, ambiguities must be construed in favor of private property rights.
“Generically, general plans are hopes, dreams, wishes and visions,” Baird said. “And hopes, dreams, wishes and visions are not sufficient to deny a conditional use permit for inconsistency.”
More pointedly, Baird also said he thought the permit itself had been weaponized against the development, envisioned to hold several hundred residential and overnight-accommodations units and up to 72,000 square feet of commercial space.
“To the best of my knowledge, the [permit] … never came up during the original year or so, year-plus, of the review of the application for the subdivision,” he said. “Thus, I’m more inclined to believe that it’s a deliberate attempt to target the project.”
‘A very black-and-white reading’
Most commissioners agreed with Walker’s assessment that the general plan issue effectively tied their hands.
“I think that it’s not something that we can approve because of it not conforming with the general plan,” said Commissioner Evan Clapper. “And so I see it as a very black-and-white reading.”
Commissioner Mary McGann and Commission Chair Jacques Hadler both agreed.
But Commissioner Bill Winfield, who alongside Commissioner Mike McCurdy voted against the motion, argued that divergent recommendations from staff and various attorneys, including outside counsel hired by the county, complicated the issue.
He said the cost of possible litigation resulting from a denial could financially “crush” local residents.
“I will not gamble the house on the county’s financial future and then turn around and ask the people of Grand County to pay for a colossal mistake,” Winfield said.
During the commission’s April 16 meeting, Baird had implied the county might be opening itself up to litigation that could cost them well over $22 million. On Tuesday he apologized, saying some took umbrage with his tone.
Later, however, he said the commission’s denial could expose Grand County to a “$100 million-plus liability” as the decision was “clearly an attempt to downzone the property and deny vested rights through the back door.”
(Doug McMurdo | The Times-Independent) Members of the public speak at a Grand County Council meeting May 7, 2024.
Setting aside public comment
Several commissioners also sidelined the 20 or so citizens who spoke out against the project at the start of the meeting and on April 16.
“I want to remind everybody to note … that the commission must make this decision as an administrative decision,” said Hadler. “And that … public clamor may not and will not be considered.”
McGann emphasized that point after Baird exhorted commissioners to put aside public comment. He also panned the process that puts administrative decisions such as conditional use permits before elected officials, calling it a “terrible mistake” that “everyone in Utah is trying to correct.”
“I would hope that you wouldn’t shirk your duty to approve an approve-able project,” Baird said.
“I would never shirk my duty,” McGann later responded. “I have taken this incredibly seriously.”
While most of the 10 public comments reiterated hashed-out concerns – about flooding, emergency access, the condition of Kane Creek Boulevard and the development’s water rights, to name a few – one man who identified himself as the grandson of the property’s previous owner called into question the honesty of the Kane Creek Preservation and Development business partners.
The Kane Creek developers’ attorney, Bruce Baird, said it’s a “terrible mistake” that elected officials review administrative decisions such as conditional use permits.
“Seeing what went down with my family and how continuously I’ve seen them throw my family under the bus to justify what they’re doing – I think it is horrific,” said the commenter, John Walden.
Walden said his family was “completely cut out” from the sale of the property and said he didn’t find the developers trustworthy.
“I just find it very strange to trust someone that would meet with an elderly man privately to sell his land for a fraction of what it was worth,” Walden said.
Baird dismissed the comments as defamatory and declined to address them further. Walden, too, declined to elaborate later.
On the subject of litigation, Moab resident Laurel Hagen argued that approving the permit could actually exacerbate, not attenuate, the county’s liability by enabling developers to invest more money in the project.
“So long as we keep granting early permits without resolving the huge raft of major issues … then it just allows them to continue to rack up big bills and then a bigger bill even to threaten the commission with later,” she said.
Another commenter, Courtney Barry, grew emotional as she spoke.
“This has just made everyone so sick,” she said. “…But as awful as this is, this is the most together I’ve seen this community of granolas versus rednecks in years. I think everyone I’ve talked to agrees that this is just not right. It’s absolutely devastating.”
This story was first published by The Times-Independent.