The Office of the Property Rights Ombudsman Advisory Opinion (Pending Reconsideration), regarding the Wohali Application #2 has been received. We explore what this could potentially mean for the future of this project in Coalville?
On July 12, 2020, CFRG submitted a request for an advisory opinion to the Office of the Property Rights Ombudsman. The function of the Ombudsman’s office is found as follows on their website.
“The Office of the Property Rights Ombudsman protects and preserves the property rights of Utah citizens. The Office helps individuals and government agencies understand and comply with land use and property rights laws. The Office also resolves property rights disputes and advocates fairness and balance when private property rights conflict with public needs. The Office of the Property Rights Ombudsman is a neutral, non-partisan agency that helps citizens understand and protect their rights to property ownership and use.”
The purpose of the request was to give the Coalville City Council guidance on if/how Wohali’s Application #2 fits in the Coalville City Code under the AG 1:20 zone. CFRG is grateful to the city and the applicants for their participation in the process. We felt it was important for the council to have a complete and neutral legal analysis before they make their decision to approve or deny the application as proposed. When the opinion was requested and all parties agreed to wait, members of CFRG expressed their willingness to support the guidance given by the opinion with no further contest, even if not in agreement with the CFRG attorney’s analysis. The opinion was received on Tuesday, September 14, 2020 (but see “Request for Reconsideration” section below). However, according to information provided to the city the Opinion has not been officially released pending the reconsideration. CFRG attorney Polly McLean has indicated the Opinion is official. Here is a link to the entire Advisory Opinion. This 13-page document contains an in-depth legal analysis of the pertinent issues but is understandable to the non-legal reader. The most critical aspects of the opinion are quoted below:
We were extremely pleased to see that the Advisory Opinion aligned very closely with the legal analysis of CFRG attorney, Polly McLean. The Opinion is a huge validation to what many citizens have been saying in the public hearings. In summary the Ombudsman determined that the primary use requested in the application is a “resort” not a “golf course with support facilities”. The final statement under the “Analysis” portion of the opinion (Pg. 3 of 12) reads as follows:
“This Opinion answers whether the plain language of the regulations in the Agriculture zone allows a high-end luxury private member golf resort with various commercial amenities as a permitted use. This Office concludes it does not.”
This statement sets the basic tone of the entire opinion. It is backed up with complete legal analysis as to why the Ombudsman’s Office determined the use requested is a resort and not permitted in the AG zone.
“A land use applicant does not secure land use approval just by attaching the label of a permitted use to what is being proposed. Wohali’s legal briefings analyze the proposal as a “golf course”, and therefore a permitted use, rather matter-of-factly. But where exists dozens, if not hundreds, of pages of application materials, staff reports, and meeting minutes that further explain the nature of proposed use in more detail, the applicants self-applied label of golf course to the use should not be taken at face value…Simply put, the project is a proposal for a resort.” (Pgs. 6-7 of 12).
The conclusion of the Advisory Opinion gives instructive language to the city regarding the proper application of the Coalville City code to this particular application:
“Wohali’s new Application was submitted as a land use application seeking approval under existing zoning. The City must therefore comply with the mandatory provisions of its land use regulations and apply the plain language of those ordinances in regards to the application. Because the Agriculture Zone plainly restricts uses that are not incidental to agricultural use, a recreation facility with support facilities does not include a high-end luxury private-member resort and associated commercial resort amenities. Such a resort use is not otherwise permitted in the Agriculture Zone, and the application is therefore not entitled to approval as proposed. “ (Pg. 12 of 12).
Request for Reconsideration
Not surprisingly, the applicant has filed a request for reconsideration with The Ombudsman. Unfortunately, a partially outdated version of the Coalville City code is available on-line and it is unclear how the Ombudsman was directed to this version. Two citations used in the opinion found at Footnote 13 & 14 are affected. The potential impact of the revised code along with the other 5 additional points raised by the applicant will be reviewed by the Ombudsman to determine if an adjustment is needed. Any changes to the opinion will be published and we will share them at that time.
The prior approval of the golf course only (Application #3) is unaffected by the opinion and Wohali is free to continue the construction on the golf course itself if they choose. CFRG also does not challenge their right to construct 125 homes within the AG zone.
The decision on Application #2 is slated to go before the Coalville City Council, possibly as soon as Monday, September 28th. The council will have the opportunity to review this opinion and potential reconsideration, as well as all of the other analysis they have been presented, and will be tasked with making the final decision as to whether Wohali’s Application #2 is approved. It’s important to note that neither the original opinion nor the reconsidered opinion is binding on the City Council and they may make a decision contrary to this legal advice. However, going against this opinion could have serious ramifications for the city if the matter is ever involved in litigation.
As a citizen group we strongly urge our city officials to follow the recommendation of the reconsidered Advisory Opinion when received and make approvals in strict accordance with our city’s ordinances.