Submitted by Dan Schroeder, Conservation Chair, Ogden Sierra Club
May 28, 2010
Thank you for providing this opportunity to comment on the draft “Binding Memorandum of Understanding” (MOU) between Weber County and the owners of Powder Mountain (WAH). These comments are submitted on behalf of the Sierra Club and our more than 300 members who live in Weber County.
Before getting into the MOU itself, I would like to express our gratitude for your courageous position on the matter of appointing the Powder Mountain Town Council. It is a fundamental American principle that our leaders should be chosen by the people, not merely appointed by a particular commercial interest or by those who own the most land. This principle is enshrined in the Utah Constitution and is supported by the Equal Protection clause of the U.S. Constitution. Ogden Valley residents of all political persuasions have now rallied behind this principle, and we have every reason to expect that the courts will agree. Weber County is therefore engaging in the present negotiations from a position of strength
With this in mind, here are the Sierra Club’s concerns with the draft MOU:
1. The MOU fails to protect the Middle Fork Wildlife Management Area.
First among the Sierra Club’s concerns is that there is no language in the draft MOU to provide any protection whatsoever to the Middle Fork Wildlife Management Area (WMA). As you know, the WMA borders the Powder Mountain property on three sides, and provides critical habitat for elk and many other wildlife species. Earlier proposals from the Powder Mountain owners have vividly shown their intent to place private home sites along much of the WMA boundary. This would threaten the WMA by enabling unauthorized entry, trail construction, motor vehicle use, and poaching. These problems already occur in other remote areas of northern Utah where private residential properties adjoin public lands. The Powder Mountain boundary is similarly remote, making law enforcement impractical.
Fortunately, there is an easy way to prevent these problems. The development plan should include a buffer zone that separates private lots from the WMA, with a trail along the entire boundary that would give law enforcement personnel access to this critical area. The trail might also be used for public recreation, to whatever extent is consistent with the overriding goal of protecting wildlife habitat.
I therefore request that if you go forward with the MOU, you add a provision for a buffer zone and other necessary protections for the WMA. It would be prudent to consult with the Forest Service and the Division of Wildlife Resources regarding the details of these provisions.
2. The traffic safety/impact study should not be delayed.
The draft MOU inappropriately postpones the initiation of the traffic/impact study until many years in the future, after nearly 1500 units have already been constructed on Powder Mountain. This delay would create long-term uncertainty over the ultimate impact of the development on the rest of Ogden Valley, including the question of whether a second access road would ever be built. It is unfair for the residents of Ogden Valley to have to live with this uncertainty for so long. Instead, the traffic/impact study should be completed before any MOU or development agreement is finalized.
3. The MOU would allow Phase 2 to proceed before safety recommendations are met.
Although Section 2.3 of the MOU requires WAH to pay for the traffic safety/impact study and to “begin implementation” of the study’s recommendations before proceeding with Phase 2, it does not actually require that the safety recommendations be fully (or even mostly) implemented. If this loophole is not closed, it will almost certainly lead to unsafe conditions and/or additional litigation.
4. The MOU is an invitation for future litigation.
WAH has already demonstrated its eagerness to go to court to get what it wants. Entering into a “binding” memorandum of understanding would give WAH additional grounds for future litigation, tying the County’s hands whenever it might seek to impose additional requirements that are not explicitly included in the MOU.
While an informal MOU might serve as a useful guide for future negotiations, I am not convinced that a binding MOU would be in the best interest of the County under any circumstances. Instead, I would urge you to bring forward an actual development agreement that spells out the County’s requirements in much more detail.
Should you nevertheless choose to go ahead with this binding MOU, I urge you to amend it to address the concerns described above.