Thoughts on the Powder Mountain Development Agreement
Steve Clarke 7-15-08
The Powder Mountain issue is on one hand straightforward and relatively uncomplicated, and on the other hand extremely complicated.
In the more simple case a group of people purchased a large tract of land, have asked the County for a rezone of the land, and have presented a draft Development Agreement for consideration. The recommendation of the Planning Commission is for approval of a subset of the current proposal with a set of recommendations. The question is, “is the request in the best interest of the citizens of the County”, if it is not, why not? Reasons the requested rezone is in the best interests of citizens are:
1. Landowners have a right to request a rezone when they have a significant business opportunity which creates jobs, taxes, and offers amenities which are valued by customers.
2. Residents of the County will be benefited by job opportunities and use of the amenities.
On the other hand, there is a large set of complicating issues, which in the end are reasons the rezone request is not in the best interest of the citizens of the County.
1. The rezone asks for a large increase in density which is not supported by the General Plan.
2. The traffic analysis (performed assuming 1100 fewer residential units than the Development Agreement calls for) and the Mitigation plans for traffic and construction demonstrate a very large increase in congestion on Ogden Valley and Ogden Canyon roads despite the mitigation efforts.
3. The single access road to the proposed resort is the steepest ski resort access in Utah. By experience this endangers life, limb, and property of County residents.
4. Recognizing these issues, the County has begun work to define a Resort Zone Ordinance and a Transfer of Development Rights Ordinance for the express purpose of mitigating impact of this type of development. While these ordinances are not yet adopted, the policies reflected in the draft work do not support the requested density and accessibility of the property.
5. The petitioner expects the citizens of the County to fund and build new roads for emergency access and for all season access in order to diminish safety concerns.
6. Ski resort development experience (even in a positive economic environment) is financially risky. There is a significant risk the petitioner may create a negative value to the County with a failed resort development.
7. The petitioner has filed an incorporation petition which affects unwilling residents who are not able to vote on the matter. While some see this as a legal step, others see it as an unconstitutional move. This move speaks to the motivation and ethics of the petitioner, which increases concern about the likely high risk of financial failure.
The County Commission has 3 alternatives:
1. Approve the requested rezone and Development Agreement without modification.
2. Negotiate changes to the Development Agreement before approval.
3. Deny the rezone and Development Agreement.
The petitioner maintains that failure to agree on a Development Agreement will
result in incorporation. Several of those most experienced in the ski industry suggest that denying the rezone request is the right move for the County. They feel financial issues driven by market conditions and by the complications of a divided town (should incorporation occur) will make the probability of successful development very small. They maintain that subsequent developers of the property are not likely to make comparable demands for rezone of the County, or of the town if it exists at that point.
If incorporation occurs the petitioners will name the Mayor and Town Council members and have the expectation that they will adopt zoning laws, or accept the Development Agreement now proposed to the County, which will permit them the density and other entitlements they expect. Citizens could referendum an adopted zoning law to bring it to a vote. The town council could accept a development agreement as an administrative action, which would not go to vote (I believe). Should the town decide to un-incorporate, it could take at least two years to create a majority of the town council who would support that move. This means the only resort of the disenfranchised citizens is to go to court against an unconstitutional law. Winning such a case is not a sure thing.
The Commissioners have stated that they will not approve the currently proposed Development Agreement.
That leaves modification of the Development Agreement as a possibility, and is the option I feel should be pursued. If agreement can be reached, good; if not, denial is the result.
Successful negotiations include understanding the non-negotiable points of each party and finding a way to manage around them. A common negotiation technique is to redefine the debate, which is how the petitioners have responded. They increased the size of the development by 1800 acres and 1150 requested units. They accepted some of the Planning Commission conditions, notably sewer, and rejected others, most notably the density limits and responsibility for the roads. Since the development agreement does not offer any specifics about development plans for the new 1800 acres, we must assume the move is designed to garner more density for the total resort and to avoid coming to the County in the future with another requested rezone.
Here are my suggestions for the County’s next negotiating step:
1. Use the newly included land, which includes a “James Peak village” area at a low elevation, just above Snowflake subdivision, to make changes to the road unnecessary.
2. Use the policies reflected in the draft TDR and Resort Zone ordinances to develop a quid-pro-quo for density above the est. 1200 current by-right units.
In my mind these are the points on which the County can not “give”. The County can give on issues of master planning, building height, road width, and other adjustments to County building standards.
Let’s discuss item 1, making road changes unnecessary. The objective is to replace the use of cars and the road for the residents and day-users of the resort.
The newly added land offers a chance to use the lower elevation as a staging area, where access to the top of the mountain is more like traditional ski resorts, using gondola systems, cog railroads, or other schemes. It would not include bussing people up the road. Shuttle busses, equipment movers, etc. would be employed at the top of the mountain to make it unnecessary to have people travel the road in cars. The same principle could be employed from the Cache Valley side of the mountain, providing relief for some traffic in Weber County.
Extending the same principle, people mover technology could be mandated for users coming from outside Ogden Valley by requiring day-users to leave cars in park and ride lots in Ogden and Huntsville (for those coming over Hwy 167). Residents would have sheltered parking at the bottom of the mountain. It would be unnecessary to provide public parking at the top of the mountain.
This approach would have little effect on the concept development plan, except for the need to provide outstanding levels of public transportation both at the bottom and the top of the mountain.
(As an aside I see logical extension of this approach as a way to change the Ogden Valley density discussion to an Ogden Valley transportation problem in the long range vision of the Valley. I envision use of 25th street nightlife, Ogden hotels and other lodging, and many of the other facilities of Ogden City to make it less necessary for the resorts to develop the “traditional villages” in their resorts and for the Valley to develop extensive commercial on the Valley floor.
We move the problem from “how to house large numbers of residents and visitors”, to “how to transport large numbers of visitors” quickly and easily. The Powder Mountain case is a prime example of the value of such an approach. In my own mind I am intrigued by the ease of use of the Atlanta airport people mover train, or the way the French use trains to go skiing. I think we need to look for creative answers to match our blessing of having world class recreation opportunities adjacent to a robust Wasatch Front.)
Point number 2: Establishing a quid-pro-quo for all density units above 1200 (which is the current by-right number of units that go with the land (except for an unknown number associated with current zoning on the 1800 additional acres)). Here there are several guiding policies:
1. Implementation of a modified cap-and-trade system for development rights (or units) with the cap established by current by-right development rights, e.g. 1 for 3 acres in AV3, one for 40 acres in F40, etc. In the Valley today that cap is estimated at 17,500 with about 3500 already developed.
2. Use of a TDR ordinance which is basically a “1 for 1” or “need a right, buy a right” system with recognition of some objectives which offer bonus density.
Those objectives are:
a. Reduction of traffic north and west of Pineview reservoir.
b. Recognition of uncongested access from/to outside of the valley, e.g. proximity to Trappers Loop (Hwy 167).
c. Preservation of open property adjacent to the reservoir.
d. Preservation of key scenic or historical parcels of substantial size.
3. Use of a Resort Zone ordinance which gives great freedom to resorts to master plan (as reflected in many aspects of the Powder Mountain development agreement) (as an aside, the development agreement is very similar to a resort zone ordinance), in return for which the resort buys TDRs to offset density above their by-right number. This balances density by removing a unit from someplace else in the Valley to place it in the resort.
Powder Mountain suggests that a 1% real estate transfer fee would provide this quid-pro-quo. The math shows that it would take at least 3 (I think 5 is more realistic) turns of a property to return enough money to the County to compensate for the development unit. It is likely to take many years to achieve that kind of revenue, in the meantime development rights and open property become increasingly scarce. We need a scheme that permits capturing the development right closer to the time its match is built on the mountain. My suggestion is to require a transfer fee of greater than 1%, say 2%, and to require a fee of $10,000 per unit on each unit as it is approved in each phase of development, payable at time of final approval. These fees are passed along to buyers. It might be possible to negotiate a reduction in impact fees required for each unit (Powder Mountain has requested $0 impact fees).
Since the Powder Mountain proposal creates substantial traffic north and west of the reservoir and does not offer easy access out of the Valley I suggest a negative bonus be applied and that the number of by-right building rights be reduced by 30%. This means more money would need to be collected to buy even more TDR’s from other places in the Valley or to buy open space land.
Additional analysis of the proposed development agreement is needed to complete the negotiating strategy, but on these two points, safety and building rights I maintain the County has no room to “give” without seriously impacting the welfare of the current citizens of the County.
