Derek Anderson, the Salt Lake real estate attorney who proposed and sponsored the West Hills township, is appealing Summit County Third District Judge Matthew Bates’ decision to rule the incorporation unconstitutional less than a month before Election Day.
Bates issued the ruling last week 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 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 that 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 incorporation process violates the Utah 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, she 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.
In an order published last week, 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. Specifically, he said there was “nothing unique or special” about the first public hearing to warrant treating landowners differently if they were added to the township’s boundaries after the hearing had concluded.
He 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.
Bates also invalidated the Lieutenant Governor’s Office’s certification of the West Hills incorporation, effectively nullifying the ballot measure — a decision Anderson hopes to reverse through his appeal to the state’s highest court.
“We are encouraged by the Utah Supreme Court’s decision to promptly review our emergency motion appealing the district court’s ruling to invalidate the incorporation statute,” Anderson said in an emailed statement on Monday. “This expedited review emphasizes the case’s significant impact on the electoral process, particularly the risk of disenfranchising voters in West Hills and other Utah communities pursuing incorporation to protect individual property rights.”
The emergency petition centers on the decision to issue a ruling so close to Election Day, potentially causing confusion among voters. Anderson’s attorneys additionally argued that Anderson, as the town sponsor, simply followed the law enacted by the state Legislature.
Moreover, the attorneys said the law in effect when Anderson proposed West Hills was created specifically to minimize uncertainty, pointing out numerous court cases related to incorporation efforts prior to the modified legislation’s adoption in 2021.
“The Legislature also sought to create a firm deadline for exclusion requests to prevent potentially endless modifications to the municipality’s proposed boundaries,” the petition stated. “Giving specified landowners the opportunity to request exclusion after the second public hearing could require further boundary modifications — and even additional feasibility studies — to ensure the proposed area met population, contiguity and other criteria for incorporation.”
The petition also argued that the first public hearing is early in the incorporation process, which is often expensive and a years-long endeavor.
“The Legislature reasonably chose to limit the right to request exclusion to the times in the incorporation process where exercise of that right would be least disruptive,” the petition said. “Specified landowners can request exclusion after the initial request for a feasibility study — i.e., at the beginning of the process — and after the first public meeting — i.e., near the middle.”
The exclusionary period for West Hills ended approximately 11 months after Anderson first proposed the township. The second public hearing, meanwhile, was held 20 months after Anderson’s initial request for a feasibility study.
“In short, the Legislature needed a cut-off, and timing and administrability provided a reasonable explanation for not extending the right to request exclusion to specified landowners after the second public hearing given the need for finality,” the petition summarized.
The document also pushed back against claims that Anderson, or town sponsors in general, could intentionally manipulate an incorporation’s proposed boundaries to ensure a favorable outcome.
“The concern is … overblown, as the risks of engaging in such manipulation are too great for would-be incorporators,” the petition said. “Under the statute, a sponsor will never have the opportunity to redraw the proposed municipal boundaries if the initial map satisfies all the criteria for incorporation, even after exclusions. It would be a bad gamble to exclude specified landowners at the outset on the off chance they could be included later.”
Anderson’s attorneys argued that the end of the exclusionary window provides certainty to voters because the boundaries of the municipality are “locked” after the second public hearing, writing that “any action for or against the incorporation must then occur through the voting process.”
They also pointed out the right to opt out of incorporation is a statutory benefit resulting from the language of the law, not something that is constitutionally mandated. Essentially, the Legislature chose to give landowners a chance to exempt themselves from incorporation when lawmakers could have omitted the opportunity altogether.
“What’s more, the right itself is not absolute: the Lieutenant Governor cannot grant exclusion if doing so would create an unincorporated island within the proposed municipality or the property receives a majority of municipal services from the county,” the petition said. “And even without the right, landowners have other ways of resisting the incorporation — including voting at an election (like the one the district court effectively canceled here).”
Conway in a statement to The Park Record said she was not surprised by the appeal and considers the move to simply be part of the judicial process.
“The Utah Supreme Court’s granting of an emergency motion for expedited briefing does not indicate that Anderson’s petition for extraordinary relief will be granted,” she said. “Judge Bates thoughtfully issued his ruling in advance of the election to relieve parties of campaigning against a measure that should never have been placed on the ballot. We are confident Judge Bates’ ruling will be upheld in the Utah Supreme Court.”
The 10 plaintiffs have until Wednesday to file a response. Anderson requested the Utah Supreme Court issue a ruling no later than Nov. 3, the day before Election Day.
However, Summit County Clerk Eve Furse clarified that her office will continue to not count votes cast for or against West Hills unless Bates’ order is officially overturned.
“The filing of the appeal doesn’t change that order,” she explained. “If there is a stay or the decision is overturned, we will count those ballots. All ballots submitted to the Clerk’s Office are maintained through the election and for 22 months afterwards as required by statute.”
The proposed West Hills township covers 3,600 acres along S.R. 248 near Kamas. It has 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 believe the incorporation would give residents more flexibility with their property, help control expected growth in the area and encourage open land preservation.