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Sunday, February 17, 2008

An important Letter to Residents of Powderville and a warning to Potential Powder Mountain Investors

Fellow Valley residents and friends, The Ogden Valley Forum is just shy of two years old, but this is probably the most important post ever to appear on this forum. Certainly the greedy Powder Mountain Incorporation scheme is the most important issue to ever face Ogden Valley residents.

With that in mind, disseminate this post freely to everyone while encouraging them to join in the
President's Day morning Power Mountain Rally. Also encourage them to sign the Petition.

Happy President's Day!

Here is Mr. Wheatley's incredible post:

By Kimball L. Wheatley, Citizen of Ogden Valley and the United States of America

Dear citizens of Powderville,

I see you have begun calling your town Powderville, a place with a puppet government explicitly designed to bypass the laws, rules and regulations all of the rest of us have agreed to live by. In this incredible conflict-of-interest circus, the Powderville town council is appointed by a few men who stand to make hundreds of millions if the town laws are just right, who dole out the town budget in the form of a loan, and who have their lawyers write all the laws. Only after the new laws are in place and the town is approaching bankruptcy do the residents of Powderville get to vote. In respect for the sentiments of valley residents forced into Powderville, I will refer to these few men as the perpetrators, or ‘PERPS’ for short, rather than one of the more unseemly names I have heard them called.

I have sensed that many of you are getting discouraged and feeling helpless at the hands of the PERPS and my purpose here is to rally the troops. In fact, we are only in round one of this fight and things are not nearly as hopeless as they may seem. We clearly own the moral high ground and valley residents are uniting…these are good assets to have.

The PERPS got real greedy when they decided they could make a couple hundred million dollars more on their Powder Mountain deal if they could sell two or three times the number of homes, condos and hotels allowed on the property they just bought. Never mind that the allowed density was based on decades of solid reasoning and zoning rules to balance development against what our roads, water and pollution circumstances can support. Never mind that ten years earlier the residents of Ogden Valley gave up their own development rights (via down zoning) to stay within the carrying capacity of the Valley. When UDOT, DWR, the Ogden Valley Planning Commission and loads of valley residents expressed serious reservations about the impact of such a massive increase in density, the PERPS found a loophole they think will allow them to get their excessive density by forming Powderville and ignoring the planning issues of Ogden Valley.

We now know thatHB466 was flawed enough for the Utah Senate and House to change it, allowing residents in future new Utah towns to vote. But, given that some important people in the Utah State Legislature and the Utah League of Cities and Towns are on the payroll of one or more of the PERPS, we have to assume they will let Powderville slide through. Our own representative Gage Froerer is pursuing retroactive application to Powderville in his house bill; good luck Gage, but the law firm owned by the speaker of the house is on the payroll.

However, there is at least one big issue left that the PERPS have to deal with to finish squeezing through the loophole. Wolf Creek Resort has filed a petition to withdraw 160 acres of their resort that the PERPS included in Powderville. If the county commissioners grant the withdrawal, the boundaries will have to be redrawn and they may not reach the 50% valuation criterion of HB466; a citizen watchdog group is monitoring the situation. Even so, we have to assume the PERPS will figure out a way to bypass more rules and Powderville will become reality.

It may appear that all is lost, but residents of Powderville should take heart. All we know for sure is the PERPS are some particularly bad actors, driven solely by greed, who could care less about your rights and your votes, let alone your opinion. They used a mistake in the law to run over your way of life and your beliefs about democracy, asserting they have every legal right to do so. They sent letters and PR people to tell you about Powderville, describing in excruciating detail how your opinion simply does not count. But I think they have overreached. Despite the loophole HB466 put into the law allowing the PERPS to do this to you, they are not able to completely abridge your rights as citizens of Powderville, Weber County, the State of Utah, and the United States of America.

The PERPS have also underestimated the power of the rest of the residents of Ogden Valley. They seem to think we will just sit back and accept a development the size of Brigham City on Powder Mountain just because they found a legal loophole allowing them to do it. The Huntsville Town Council was the first elected body to stand up to the PERPS and say NO. Why did Huntsville say no? Because their oversize resort will exceed the capacity of both Ogden Canyon and the intersection at Pineview dam, where “frequent traffic disruptions will be experienced” (UDOT jargon). So the backed up traffic has to take the county road around the east side of the reservoir, through Huntsville, to get to Trappers Loop. Huntsville residents were simply shocked to see plans for two stop lights in their town to handle Powderville traffic. Then they started thinking about inversions and pollution from 10,000 SUV trips a day.

And we can be heartened by citizens hitting the streets over President’s Day weekend to carry signs of protest, making sure the PERPS’ customers know what is happening. I am hearing some pretty interesting ideas from these folks about how to get the PERPS to listen to reason. One is a full-blown BOYCOTT POWDER MOUNTAIN movement, certain to shine the spotlight of regional, if not national attention, on the shameless activities of the PERPS.

As the residents of Powderville stand up to the PERPS, as you surely will, you will not be standing alone. The rest of the valley is in this with you and we have resources and skills to help. In that spirit, here are some thoughts on what you (and we) can do.

To form the government of Powderville, the PERPS will have to find six adult permanent residents of the town willing to become their puppets. This may be harder than they think since they will be directing their appointees to ignore the advice of UDOT and the Ogden Valley Planning Commission and increase density to a level certain to kill lots of people. An incorporated town provides certain protections for officials, but malfeasance in office, conflict of interest, and corruption/ collusion are not among them. Which six of you want to be left hanging with the liabilities associated with pushing Powder Mountain Road beyond capacity just so the PERPS can make a lot of money? Which six of you will join the ranks of the PERPS and defend their immoral methods to your neighbors and used-to-be friends? Which six of you want to be in the line of fire and ultimately take on the blame for any bad consequences of a resort 2-3 times the size it should be? However, for the moment let’s assume the PERPS can find six of you willing to assume their liabilities and do their bidding.

Assuming Powderville comes into existence with its puppet government, you residents still have lots of power and it will be a long time before the resort will have enough permanent residents to outvote you, maybe never. Various people are still studying your rights as residents, but it appears you have some powerful options worth considering.

You can dissolve the town and revert to unincorporated Weber County; this sounds good, but has some faults. First, the PERPS will hold the town hostage by putting strings on the start up money to insure they get the excessive density approved. Then they will claim any attempt to take away the density the town gave them is taking away their rights. So dissolution may not work.

The more likely scenario is the town will be established, the PERPS will appoint the town council, their lawyers will write the zoning laws to give them the excessive density, and they will ask the town council for approval. The PERPS will attempt to make it look like their town council acts independently and in the best interests of its residents. They have to do this to move liabilities resulting from excessive density from them to the town council and town residents (“all those dead people are not our fault; the town council approved our plan after studying the issues; if anyone is at fault it is the town council who were acting independently and in the best interests of town residents when they approved our plan”). Fortunately, I have been told Utah law gives town residents a safeguard against the creation of bad laws; apparently you can use a referendum process to reverse law you find unacceptable.

So, here are some ideas to stop the PERPS from taking away our right to vote and destroying Ogden Valley with their excessive density.

1. Take the moral high ground. Residents of Powderville should ignore HB466, duly elect six people under the terms of the revised law, and submit their names to the county commission for the first town council as an all-or-none deal; let’s name it something like the elected, or legitimate, or true council. This puts the PERPS in a position of having to defend their choices over the will of the people, exposing the puppet government created under the loophole law for what it is. The PERPS will attempt a divide-and-conquer approach by offering to accept some of the elected people, but don’t fall for it…keep it all-or-none.

Meanwhile, make sure any of your neighbors who may be considering a PERP appointment to the council, understand the consequences of joining up with them; personal liability, appearance of corruption, and used-to-be friends come to mind.

Assuming the elected town council will be unacceptable to the PERPS, and assuming they can find six willing puppets, the official Powderville Town Council (the puppets) will come into existence and begin to rule on the zoning laws submitted by the PERPS. As each of these laws is proposed, the elected town council can evaluate them, accept public input, and decide whether it is a good law or a bad law. If it is good law, they can bless it. If it is a bad law, they can start the referendum process to reverse it. For example, the puppet council may rule that increasing density to the level their masters want is ok, even if it kills a few more people. The elected town council may say the toll is too high and rule the PERPS should stick to the density they had when they bought the property. Then, to put teeth into their ruling, they launch the referendum process to reverse the bad law. The elected council can’t make any new laws, but they can certainly stop bad ones until they get to take over as the official town council.

This appears to mean you can challenge and reverse every bad or self-serving law the PERPS try to force on you. At the very least this will drive off the investors we don’t want, those interested only in a PERP-controlled town with an unfettered path to excessive density.

Another thing the elected council should do soon is to name the town to your liking. The PERPS think it should be called Powder Mountain because they think it will make marketing their resort easier. They think names like Eden and Liberty are quaint, even embarrassing when they talk to the sophisticated investors and buyers they envision. But sooner or later you residents get to vote and you can vote to name the town anything you want, however embarrassing to the PERPS. So let’s not let “Powder Mountain” take hold as the name of your town, instead referring to it as the sham “Powderville” until an elected town council is in place and decides on a name the residents want.

2. Look to the future of the town. In no more than two years you residents will be allowed to vote to replace the puppet government and change the town’s laws and ordinances to your liking. Your first matter of business will be to keep the town afloat since the feasibility study commissioned by the PERPS is based on a two year loan (from them) and an unrealistic rate of subdivision development and property sales to fund the town. So you will begin with a financially bankrupt town that you can easily dissolve and return to the county, which is just what the PERPS intend…they make their millions and the problems revert to county and the rest of us.

But you can decide to continue the town and use your rights and obligations as a town to find the money you need to run it as well as the money needed to improve the lives of its voting residents. Utah law gives a town a fair amount of authority, including taxes, liquor rules, building codes, impact fees and annexation. You will be in an excellent position to get back some portion of the hundreds of millions that made the PERPS rich at your expense. For example, the very idea of a dry resort or blue laws or annexation will bring them to the negotiating table. The PERPS will no doubt call this over regulation and unfair taxing, even extortion. But the voting residents of any town pretty much get to make up the rules and are obligated to make decisions in the best interests of their voting constituencies.

3. Bankrupt the PERPS. It is sad to say, but the excessive density the PERPS want is driven purely by greed and risk to their money is the only thing that will cause them to listen to reason. The good news is they are motivated by greed, not all that bright, in shaky financial circumstances and actively looking for a buyer for the resort before the whole house of cards come down. Daniels (the main money guy) thought he would get his money out by now and is getting concerned. The PERPS are fighting among themselves about who knows what. Some may even be questioning the wisdom of their loophole assault on valley residents and governing bodies.

Importantly, the PERPS never had any intention of developing Powder Mountain Resort per their excessive plan; in fact, they have neither the capital nor the know-how to go about it. Instead, they are known in the industry as “flippers”, people who buy property in leveraged deals with an angle getting zoning concessions (density) and/or breaking it up into small pieces for sale. Now they are including a new angle: they own a town that will grant all the density and corner cutting they want.

But anyone thinking about spending the hundreds of millions the PERPS want will go through an elaborate due-diligence process to ferret out any risks to their investment. Their last buyer bailed out on them after taking a close look at their master plan. We need to find every single spark of risk and make sure the buyers are aware. If enough risks stack up, no credible investor or creditor will touch it. So let’s get started listing the risks:

• This letter is a beginning. We will make sure it comes up high on any web search regarding Powder Mountain, Powder Mountain town, Powderville, Ogden Valley, etc. Of course the search will also bring up pictures of residents in protest.

• These days the biggest and best companies talk a lot about corporate social responsibility and most have made a public commitment to do what is Right, not just what they can legally get away with. They are the bankers, the auditors and worlds leading companies. Unfortunately, the best won’t touch the Powderville deal because it is founded in corruption and the PERPS stirred up a hornets nest among the locals. But we can easily paint the PERPS as a good example of corporate irresponsibility. We have good material here for the kind of case study business schools use to teach important concepts. We can write up and disseminate the case in installments…the last chapters yet to be written.

• We will bring regional, if not national attention, to the quickly-corrected loophole law and the corrupt puppet government.

• We will place a few hundred signs between Mountain Green and Powder Mountain, making sure investors and customers are aware of our concerns, and ask them to avoid complicity by boycotting Powder Mountain until the PERPS listen to reason.

• We will make sure the investors understand who the sixty or so residents are who will be making decisions about their taxes, building codes, zoning, liquor, and how frequently their streets get plowed.

• We will make it clear that we will do everything possible to make sure any and all liabilities associated with the people who are injured or die on Powderville roads will land squarely in their lap. For example, two-to-three times the density means at least two-to-three the accidents. Based on the PERPS own traffic analysis, the excessive density will result in a lot of dead and injured people (based on the last six years, we can expect 40 dead people every six years from brake failure alone). UDOT and the Ogden Valley Planning Commission have weighed in on the risks of exceeding the capacity of the roads when there are limited options for improving safety (especially in Ogden Canyon, at Pineview dam and on Powder Mountain road), so it should be relatively easy to put the death and injury liability on the PERPS or its puppet town council where it belongs.

• We will help them to understand that even during the era of puppet-government rule, the valley will be fighting them every step of the way, through every means possible. The PERPS need to understand that this is a moral issue for many and acts of civil disobedience will be among the viable options. Just last night someone talked about clogging Powder Mountain road on President’s day, a rather easy thing to do if someone gets a little crazy.

• We will help them to understand that we can recruit allies to our fight. The two golf courses in the resort are located at the headwaters of Geertsen Creek which contains a rare and genetically pure sensitive species protected by a conservation agreement; 500 inches of snow, golf course fertilizer, and a developer with a puppet government in charge of regulations is a death warrant for our population of purebred bonneville cutthroat trout. These golf courses and housing around them are in the calving grounds of one of Utah’s largest elk herds and their activities will most certainly affect the herd. It should be easy to recruit the likes of DWR, Rocky Mountain Elk Foundation, Sierra Club and Save Our Canyon, to help us paint Powder Mountain Resort as a text-book example of corruption and greed running amuck over the environment.

• We will help them understand that the resort and town probably does not have enough water to satisfy its ambitions (only 1400 acre feet of water for 36 holes of golf at 9,000 ft with daily 30 mph dry winds and a town the size of Brigham City). We will help Ogden City understand the PERPS have eyes on the Ogden’s aquifers.

• We will help them understand that virtually everyone who knows anything about skiing in the Powder Mountain area thinks the master plan the PERPS have drawn up is impossible. NO ONE seriously thinks it can actually be built or that it would be viable if it was. It may be a large area, but it is simply not a world-class ski or boarding mountain. It lacks vertical and has few concentration points for placing efficient lifts. The investors need to ask Powder Mountain skiers if they would continue to ski there if there are 8,500 skiers and 18 lifts on the mountain (so far, I haven’t found any).

• We will help them understand Powder Mountain Resort IS viable as a smaller resort, sized within the constraints of current zoning laws. The PERPS have argued they must have 4,000 beds to get the skiers they need, but don’t count or even consider the 4,000+ being built just a few miles down the road. A half dozen acquaintances of mine, who know the ski and resort business, think Powder Mountain could be a gold mine if done right.

• We will make sure they know what a brush fire would mean and that it is only a matter of time before the area burns, as it has many times before. Part of the resort is in Cache county, with no access for any help from Cache. The rest is in Powder Mountain town, which lacks the wherewithal to battle a major brush fire among 5000 dwellings, where 30 mph dry winds are a summer daily occurrence. Any problems on Powder Mountain road means no evacuation options.

• We will help them understand why school buses are not allowed to go up and down Powder Canyon road.

• We will make sure they understand the burdens the town will be taking on. For example, it will have to devise its own plan for affordable housing within its boundaries and the people at the bottom of the hill (the voters) will get to decide where it goes.

Fellow citizens, take heart and let’s stand up to these PERPS. We lost a battle in the Senate, but we have just begun to fight.

Your friend, neighbor and ally,

Kimbal L. Wheatley, Citizen of Ogden Valley and the United States of America


Anonymous said...

BRAVO Mr. Wheatley. Well stated, and After reading the dismissive response from Powder Mountain in the Examiner, "We have heard this all before" and "They have a right to demonstrate" Wow, how nice. What she didn't say was the same people that have the right to demonstrate, DON'T have the right to not be included in their stinking town!

Where does Powder Mountain get these losers?

Tom Grover said...

I am looking for a representative to do an interview on 610 KVNU in Logan on the protests over the weekend. Please email me at

Minor Machman said...

When it comes to HB 466 and those who passed it, one has to consider the intent of the legislation. It was "presented" that "citizens are having a hard time getting County services" and therefore we need to make this very easy for the citizens and property owners to provide those services for themselves.

This legislation was supported by the League of Utah Cities and Towns and the Association of Counties repleat with Realtor Association "people" and backed by them no doubt.

"Chris Kyler, CEO of the Utah Association of Realtors, sounds quite animated as he counts off the many members of his organization who hold high office in the state. "I've got people
who are on county commissions, mayors, state senators," Kyler says. "Our lieutenant governor was president of our state association about 20 years ago. Our people are involved in the parties, too. We've got precinct chairs and vice chairs and county delegates throughout the state." Governing Magazine.

I live in Ogden Valley where we get virtually no County "services" except what we provide for ourselves. There have been a number of requests for annexation into Huntsville Town, for example, but very few have been passed "by a vote of the all citizens" after carefuly weighing the costs versus benefits. Such is the normal bill of fare it seems to me...that citizens have a say in such decisions as a routine one way or the other.

HB 466 was "sold" based upon false premises and faulty logic to both the Senate and House both of which are corrupted by Realtor Association/Developer money. The "gatekeepers" were intentionally changed from the effected residents to the wealthy property owner/developers. It was pusillanimous and iniquitous without any thought given to anyone except the developers.

The they took the laws designed for Cities and "redlined" out all the things the developers did not like and which granted ironically "private property rights" to residents. Then to add insult to injury and show off just a little bit the power they have, these bastards added the parts about how Town government could only be elected from a list provided by these nere-do-wells. Just to let the little people know who was really in charge. That my friends is arrogance and "malice". Or As Kim points out "over reaching". And they have "...awakened a sleeping giant", Admiral Yamamoto, after the attack on Pearl Harbor.

I can find no evidence that HB 466 ever went before the Utah Constitutional Review Commission for example. Why? Roger Tew is on the Commission and also a lobbyist for the Utah League of Cities and Towns I am told - who uses our tax money to lobby against us taxpayers. So does the Association of Counties, by the way, and they "have their members positioned there also."

This is totally against 'protecting private property rights', a mantra the Realtor Asssociation loves to pronounce at every propaganda opportunity. And it is totally against our US Constitituion, 14th Amendment, Equal Protections Clause, at a minimum. "All persons who are similarly situated or circumstanced are deserving of equivalent treatment." Justice Brennan, Phyler vs. Doe.

If we vote for the right people for a change and institute an independent Ethics Commission, much of this nefarious activity could be "nipped in the bud." And those behind it could be removed from office and appointed positions etc. There should definitely be a serious legal investigation into all the participants who cooked up this scheme. And there should be prosecutions which follow. If not new laws strengthening anti- corruption and graft laws, if any actually do exist in Utah?

The current unfair and unjust property tax laws and this HB 466 new Town mess both lay at the feet of our current legislature. No late session thinly veiled heroics can mitigate the fact that we have not been represented well at the Capitol.

We will previal over these tragic and Realtor/Developer inspired unnecessary messes. But it may take a decade of honest hard work to repeal and reverse the damage these legislators have done.

Please remember that in the upcoming caucuses when you consider delegates and choose wisely. The fix begins in the next couple of months.


help yourselves said...

Remember when all you people in the valley voted for Lowell Peterson for the county commission and then he used taxpayer money for the road to this resort that he owned. I thought that you all had learned you lesson.
As I have to wonder, did the votes that you cast for all the republicans end up doing this to yourselves. I know now what it means when they say the chickens have come home to roost.

edentribe said...

Kim, you are our knight in shining armor. Thank you and all of you in Huntsville for supporting us. This is going to affect the whole Valley. We need to act together.
I had an interview today with KVNU talk radio in Cache Valley. Here's the link to the interview about Powder Mountain.
Fast forward your popup to 32:00 minutes. They also interviewed a spokesperson for PM.
Did everyone see the Channel 5 and Fox 13 coverage of our protest!!?
Let's keep up the pressure on these guys. They thought we would go quietly and they were sorely mistaken.

Scott said...

From an Ogden resident: I fully support your efforts. No more Powder Mountain for me. Any of you who ski...boycott PM. Support a quality mountain and developer...Snowbasin. Come on fellow skiers...unite.

Valley Lover said...

From one who loves this valley and hopes to reside in it one day:

Have you thought of contacting someone like John Stossel, invite him out to do an in-depth story and expose the whole thing nationally? I do not live in Utah and stumbled onto this issue when visiting the OVBA site, and read Mr. Wheatley's (AWESOME) letter.
With the mood of the country, the things being forced on us via our new Administration in Wash DC, and the grassroots Tea Parties - I would think that if you successfully publicize this issue and get it to go national - you will succeed in driving out those 'PERPS.'

Wishing you success!