Summit County Third District Judge Matthew Bates has declared the proposed West Hills incorporation unconstitutional just three weeks before Election Day and after previously indicating he would not make a decision until voters had cast their ballots.
The ruling is in response to a property rights lawsuit filed by 10 plaintiffs who are a mixed group of longtime residents in unincorporated Summit County near the proposed West Hills boundaries and second-home owners frustrated with the state’s incorporation procedures. The lawsuit, filed in May, names Salt Lake real estate attorney and town sponsor Derek Anderson and Lt. Gov. Deidre Henderson as defendants.
The original West Hills map Anderson created was submitted to the Lieutenant Governor’s Office in 2023, but it failed to meet state requirements for incorporation after multiple property owners opted to be excluded from the township. Anderson then submitted a second, revised map, which did meet the requirements.
However, property owners included in the revised boundaries did not have the chance to opt out because the law governing incorporations states that the exemption window ends after the proposal’s first public hearing. In West Hills’ case, the first public hearing was held on Feb. 12, 2024, before Anderson submitted the revised map.
Janet Conway, one of the residents’ attorneys, argued in an evidentiary hearing last month that the Utah Constitution, which states that “all laws of a general nature shall have uniform operation,” mandates everyone be treated equally unless the legislation in question explicitly applies to a particular subsection of the population.
Specifically, she said the incorporation process violates the constitution’s uniform operations clause by inadvertently separating landowners into categories and treating them differently based on when Anderson included their properties in the proposal. If the first group of landowners were able to exclude themselves from the township, then the same option should be given to landowners included in the revised boundaries, Conway said.
Bates initially declined to issue a ruling before Election Day, saying he preferred to wait until voters had a chance to decide West Hills’ future, especially considering the case would likely be irrelevant if the incorporation failed. But Conway and fellow attorney Michael Judd filed a brief 10 days after the September hearing and requested Bates reconsider his position in order to reduce uncertainty for voters.
“A decision after an election may thus have an ‘extremely disruptive effect’ and the courts must consider ‘the havoc it wreaks upon the local political continuity,’” the brief stated. “A ruling — at any level — will have meaningful practical consequences. But a pre-election ruling will help mitigate those practical consequences.”
In an order published Tuesday, Bates said he ultimately agreed with Conway’s and Judd’s arguments, both in terms of a pre-Election Day decision and the unconstitutionality of the incorporation process overall.
Anderson called Bates’ reconsideration “disappointing,” pointing out that the ruling was made the day before ballots were mailed to Summit County residents.
“West Hills proponents have followed Utah law and statutes and will most likely appeal this decision,” Anderson said. “Proponents have merely asked for flexibility on their land only to be chastised and slandered by outsiders with an agenda to stifle property rights.”
Bates specifically said the code “explicitly defines a class of ‘specified landowners,’” or landowners who have substantial property holdings within the proposed incorporation area. Those landowners are then divided into “two distinct subclasses” — property owners who have a chance to opt out of inclusion and those who don’t.
“The specified landowners are identical in all relevant respects. Yet they are treated differently based on one arbitrary factor: the timing of the incorporation sponsor’s decision to include their property in the proposed boundaries,” Bates said. “Those included from the start are granted a significant statutory right while those added after the first public hearing are denied it entirely.”
He referred to the differences as “disparate treatment” and said there was “nothing unique or special” about the first public hearing to warrant treating landowners differently afterward.
Bates additionally disagreed with Anderson’s argument that the state Legislature designed the law to prevent an endless cycle of boundary modifications.
“To grant a right to some and not to other similarly situated citizens merely for the sake of ending debate is unreasonable on its face,” he said. “The disparate treatment is also not reasonable because it puts the determination of which specified landowners can request exclusion in the hands of the sponsor of the incorporation.”
The sponsor is, therefore, able to potentially manipulate the process to prevent certain landowners from being able to ask for an exclusion, which is “unfair and unreasonable,” Bates said. Opponents of the West Hills incorporation, including the 10 plaintiffs involved in the property rights lawsuit, have repeatedly accused Anderson of “gerrymandering” and manipulating the boundaries to exclude landowners with unfavorable opinions of the proposal.
“If the Legislature is going to grant some landowners an option to seek exclusion, it must allow similarly situated landowners an equal opportunity to exercise the right,” Bates said. “Here, the statute’s operation allows an incorporation sponsor to manipulate the process by including properties that would otherwise be subject to exclusion after the deadline for exercising such rights has passed, thereby improperly depriving those owners of rights granted to similarly situated property owners.”
Bates concluded by declaring provisions of the Utah Code related to incorporations between March 16, 2021, and May 3, 2023, as unconstitutional. The ruling only applies to a previous version of state law that was in effect when Anderson first proposed West Hills, not the current statute governing the incorporation process, as the law has subsequently been modified.
He also invalidated the Lieutenant Governor’s Office’s certification of the West Hills incorporation, effectively nullifying the ballot measure. However, the 47 registered voters within the proposed boundaries who were eligible to vote on the incorporation question will still see the issue on their ballot.
“I can confirm the question will still appear on the ballot because they were printed and mailed prior to the issuance of the decision,” said Summit County Clerk Eve Furse in an emailed statement. “Our plan right now is not to count the votes. We will be notifying voters of the change.”
Jennifer McCaffrey, one of the plaintiffs and the president of the Kamas Valley Preservation Association, a nonprofit that campaigned against the West Hills incorporation and supported the Kamas City Council in its adoption of a resolution decrying the proposal, said she was happy with the decision.
“We are very pleased with the judge’s ruling protecting the constitutional rights of the plaintiffs and others,” McCaffrey said. “We thank the many people throughout the community for their support.”
The proposed West Hills township covered 3,600 acres along S.R. 248 near Kamas. It had been largely opposed since its creation two years ago, with community members citing concerns over property rights, economic viability and the sponsor’s motives.
Meanwhile, West Hills supporters said they believed the incorporation would give residents more flexibility with their property, help control expected growth in the area and encourage open land preservation.