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MARGARET H. OLSON (Bar No.

6296)
Summit County Attorney
DAVID L. THOMAS (Bar No. 7106)
Chief Civil Deputy County Attorney
JAMI R. BRACKIN (Bar No. 8753)
Deputy County Attorney
SUMMIT COUNTY ATTORNEY’S OFFICE
60 N. Main Street, P.O. Box 128
Coalville, Utah 84017
Telephone: 435-336-3206
Fax: 435-336-3287
molson@summitcounty.org
dthomas@summitcounty.org
jbrackin@summitcounty.org

Attorneys for Plaintiff and Petitioner


____________________________________________________________________________

IN THE FOURTH JUDICIAL DISTRICT COURT


IN AND FOR WASATCH COUNTY, STATE OF UTAH
______________________________________________________________________________

:
SUMMIT COUNTY, a political subdivision : COMPLAINT & PETITION FOR
of the State of Utah, : DECLARATORY & INJUNCTIVE
: RELIEF
Plaintiff and Petitioner, :
v. : Tier II
:
TOWN OF HIDEOUT, a municipal :
corporation of the State of Utah, :
:
Defendant and Respondent. :
: Civil No. 200500072
:
: Judge Jennifer A. Brown
:
:
:
:
Plaintiff Summit County (“Summit County” or “Plaintiff Summit County”) by and

through their attorneys, Margaret H. Olson, David L. Thomas, and Jami R. Brackin of the

Summit County Attorney’s Office, pursuant to Utah Code §§52-4-302, 52-4-303, 78B-6-401,

63G-2-404, Utah Constitution, Article I, Section 24, and Rule 65A of the Utah Rules of Civil

Procedure, complain against the Town of Hideout (“Defendant” or “Defendant Town of

Hideout”), as follows:

INTRODUCTION

Plaintiff Summit County has adopted a well-reasoned and publicly supported General

Plan and Development Code to guide growth within the Snyderville Basin. This is the essence

of local control and is essential to the tourism economy which is the life blood of Summit

County. The Richardson Flat area of Summit County is currently zoned for limited residential

development because it is bordered on one side by an EPA superfund site and hazardous waste

repository, and on another side by high density residential development in Wasatch County.

The Town of Hideout was incorporated in June 2008. Its creation was the result of HB

466, a bill crafted by Mustang Development and its lobbyists, and misrepresented to the Utah

Legislature as having the support of the Utah League of Cities and Towns (“ULCT”). Mustang

Development is the original developer of the Town of Hideout. HB 466 was bad public policy

and allowed a municipality to incorporate without having a feasibility study to ensure adequate

municipal revenue or services. While HB 466 was repealed in the following legislative session,

the Town of Hideout had already filed its petition for incorporation, which had been certified,

and was therefore permitted to continue in those efforts. Defendant Town of Hideout has never

had adequate municipal revenue and services since its incorporation.

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Within this framework, a developer and Defendant Town of Hideout began a course of

conduct with the express intent of defeating long standing annexation laws and the Snyderville

Basin General Plan and Development Code through a joint enterprise which included secret

meetings, failure of legal noticing requirements, hidden documents, obfuscation of public

processes, and the same type of lobbyist misdirection at the Utah Legislature which gave rise to

the Town of Hideout in the first place.

In August 2019, the Defendant Town of Hideout Town Council (“Hideout Town

Council”), in coordination with the developer, and over Plaintiff Summit County’s objections,

enacted an Annexation Policy Plan Amendment. This Amendment’s annexation area reached

across the border and into Summit County at a time (2019) when state law would not allow for

such without the consent of Summit County. In March 2020, a lobbyist, on behalf of the

developer, worked outside the normal and appropriate legislative structures and processes to

“bait and switch” legislation that was pending before the Utah Legislature (HB 359) and replaced

it with custom-made special purpose legislation (HB 359S1) benefiting the developer and

Defendant Town of Hideout by negating the requirement of county consent and restricting the

ability of a county to protest such an annexation to the Boundary Commission. HB 359S1

became effective on July 1, 2020. The developer continued meeting secretly with the Hideout

Town Council through July 2020.

During this secretive annexation process and to further the enterprise with Defendant

Town of Hideout, the developer intentionally engaged in a misdirection campaign with Plaintiff

Summit County, meeting twice with representatives of Summit County (November and

December 2019), filing an inauthentic General Plan Amendment Application with Summit

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County (January and March 2020), and then once the General Plan Amendment was scheduled

for hearings (June and July 2020) before the Snyderville Basin Planning Commission (“SBPC”),

abruptly cancelling those hearings.

In lockstep with these cancellations, the Hideout Town Council published notice for a

meeting on July 9, 2020, to approve a Pre-Annexation Agreement with an unidentified developer

and enact a Resolution of Intent to Annex unidentified property into the Town of Hideout. The

Hideout Town Council’s agenda and publicly disclosed packet lacked adequate specificity, legal

notice, or even copies of the legal documents being approved, all in an intentional and knowing

attempt to hide the facts surrounding the annexation and avoid any meaningful public and open

process. At the July 9, 2020 meeting, documents were approved without any meaningful

comments or discussion by any member of the Hideout Town Council and were not disclosed to

the public until nearly a week after they had been approved. The first time any member of the

public saw the proposed annexation map was during the meeting, and that map was intentionally

made difficult to read by the manner in which it was presented. Furthermore, the map obfuscated

what was actually being done. In short order, the Hideout Town Council passed a resolution

(“Resolution 2020-05”) and approved a Pre-Annexation Agreement. It was abundantly apparent

that the entire process had been “pre-cooked,” and that the developer and Defendant Town of

Hideout had been meeting secretly on this pre-planned annexation.

Upon learning of the deception involved in the passage of HB 359S1, the Utah

Legislature and Governor intend to place the repeal of HB 359S1 on the “official call” for the

Sixth Special Session of the 2020 Utah Legislature, scheduled to be convened on August 20,

2020.

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According to Utah Code §10-2-418(6), a municipality cannot hold a required public

hearing and approval of the annexation until at least thirty (30) days after adoption of Resolution

2020-05. In an effort to thwart any effort of the Utah Legislature to repeal the provisions of Utah

Code §10-2-418(3) and consummate the hostile and fraudulent annexation, Defendant Town of

Hideout has scheduled a public hearing on August 12th and decision on August 18th in order to

complete the annexation prior to the anticipated Sixth Special Session on August 20, 2020.

This Complaint and Petition for Declaratory and Injunctive Relief seeks to prevent the

annexation of lands within Summit County into Defendant Town of Hideout until (a) the Utah

Legislature acts in its Sixth Special Session, (b) discovery into the actions of Defendant Town of

Hideout and the developer is complete; and (c) all legal objections and causes of action are fully

litigated.

JURISDICTION AND VENUE

1. Jurisdiction is proper pursuant to Utah Code §§78A-5-102 and 78B-6-401.

2. Venue is proper pursuant to Utah Code §78B-3-307.

PARTIES

3. Plaintiff Summit County is a political subdivision and county located in the State of Utah.

4. Defendant Town of Hideout is a municipal corporation and town located in Wasatch

County, Utah.

GENERAL ALLEGATIONS

Town of Hideout

5. On information and belief, beginning in 2003, Mustang Development began a process

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to develop portions of Wasatch County on the northern end of the Jordanelle Reservoir.

Mustang Development ran into difficulties with Wasatch County in the provision of municipal

type services to remote areas that Mustang Development desired to develop.

6. During the 2007 Utah Legislative Session, HB 466 was enacted, which allowed the

creation of a municipality without the necessity of a feasibility study to ensure that adequate

municipal revenue and services would be available to sustain the new municipality.

7. On information and belief, HB 466 was the creation of Mustang Development and their

lobbyists, but was misrepresented to the Legislature to be a bill supported by the Utah League of

Cities and Towns (“ULCT”).

8. In November 2007, Mustang Development filed a petition under the provisions of HB

466 to incorporate (the “Hideout Incorporation Petition”).

9. In the 2008 Utah Legislative Session, the Legislature unanimously enacted HB 164,

which repealed HB 466. The House sponsor of HB 164, who had also sponsored HB 466,

described the bill as “the long awaited bill to fix my faux pas from last year.”

10. Wasatch County denied the Hideout Incorporation Petition in February 2008 because a

portion of the proposed incorporated area had withdrawn, leaving the town with an insufficient

population.

11. Mustang Development sued Wasatch County, claiming that Wasatch County had

inappropriately allowed the Todd Hollow area to withdraw thereby reducing the population. The

Court agreed, Todd Hollow was not allowed to withdraw thereby increasing the population and

because HB 164 did not repeal HB 466 ab initio, the Hideout Incorporation Petition was allowed

to continue.

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12. Under court order and the now repealed bill which was still applicable to the Hideout

Incorporation Petition, Wasatch County granted the petition and incorporated the Town of

Hideout in June 2008.

13. Upon information and belief, Defendant Town of Hideout has struggled since its

incorporation to provide municipal services to its residents due to its failure to appropriately plan

the town, and its inability to raise adequate municipal revenue.

Commencement of an Enterprise

14. Summit County Tax Identification Parcel No.s (“Parcel(s)”) SS-125, SS-125-C, PP-28-2,

and PP-28-1 are located in Summit County, are not contiguous to the Town of Hideout, and are

owned by Stichting Mayflower Mountain Fonds (the “Stichting Parcels”).

15. Parcels SS-87, SS-88, and PP-28-A are located in Summit County, are not contiguous to

the Town of Hideout, and are owned by United Park City Mines Company (the “UPCM

Parcels”).

16. Parcel SS-87-B-X is located in Summit County, is not contiguous to the Town of

Hideout, and is owned by the Jordanelle Special Service District (the “JSSD Parcel”).

17. Parcel SS-86 is located in Summit County, is not contiguous to the Town of Hideout, and

is owned by Stichting Mayflower Mountain Fonds (“Stichting”) and Plaintiff Summit County, as

tenants-in-common (the “SS-86 Parcel”).

18. The Stichting Parcels, UPCM Parcels, JSSD Parcel, and the SS-86 Parcel (together, the

“Development Parcels”) are zoned as (A) Rural Residential, generally one residential dwelling

unit per twenty (20) acres, (B) Mountain Remote, one residential dwelling unit per one hundred

and twenty (120) acres, or (C) Hillside Stewardship, generally one residential dwelling unit per

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thirty (30) acres, all of which are considered low residential development zone districts under

Summit County Code, Title 10 (the “Snyderville Basin Development Code”), Chapter 2.

19. On information and belief, in early 2019, Nate Brockbank (“Brockbank”) and Josh

Romney (“Romney”) began a scheme and course of conduct designed to defeat Plaintiff Summit

County’s ordinances, rules and regulations in their effort to engage in urban development on the

Development Parcels. In engaging in this enterprise, they enlisted the cooperation and assistance

of lobbyists, unwitting members of the Utah Legislature, Wells Fargo Bank, NA, Stichting, and

Defendant Town of Hideout (the “Enterprise”).

Annexation Policy Plan (Town of Hideout)

20. On April 18, 2019, the Hideout Planning Commission began consideration of an

amendment to the Town of Hideout’s Annexation Policy Plan (the “Annexation Policy Plan”),

which plan proposed to include areas of real property within the jurisdictional boundaries of

Summit County; namely, the Development Parcels.

21. According to the Chair of the Hideout Planning Commission, “the Town has almost no

amenities that most municipalities have such as parks and trails. The thought is that annexation

could possibly provide the Town with revenue, but could also be a way to add property that

could be used to provide amenities.”

22. On June 26, 2019, Plaintiff Summit County sent a letter to Mayor Philip Rubin of

Defendant Town of Hideout indicating that pursuant to Utah Code §10-2-402(6) it would

“withhold its consent to any annexation request involving properties located within Summit

County.”

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23. On June 27, 2019, the Hideout Town Council discussed the proposed amendment to the

Annexation Policy Plan. Council member Kurt Shadle commented that one of the reasons for

the plan was to “increase its revenues.” Brockbank appeared at the meeting and gave testimony

in favor of moving forward with the proposed plan.

24. Following the June 26, 2019 letter from Plaintiff Summit County, the Hideout Town

Council met in closed executive sessions on June 27, 2019, July 11, 2019, and August 8, 2019.

25. On July 18, 2019, the Hideout Planning Commission held a public hearing to consider the

amendment to the Annexation Policy Plan.

26. Plaintiff Summit County appeared at the public hearing to voice its objection to the

inclusion of the Development Parcels in the Annexation Policy Plan.

27. According to the Chair of the Hideout Planning Commission, who provided commentary

during the public hearing, “there is a property owner who owns land in both Summit County and

Wasatch County, that has asked to be annexed into Hideout.”

28. On information and belief, those property owners referenced by the Chair of the Planning

Commission are Romney and Brockbank.

29. On August 1, 2019, the Hideout Planning Commission again considered the amendment

to the Annexation Policy Plan, and again noted that “there are property owners in Summit

County that have asked to be included in the annexation.”

30. On August 15, 2019, the Hideout Planning Commission made a favorable

recommendation on the amendment to the Annexation Policy Plan to the Hideout Town Council.

31. On information and belief, Defendant Town of Hideout’s primary purpose for annexing

the Development Parcels is for municipal revenue.

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32. On information and belief, Romney and Brockbank seek an annexation into Defendant

Town of Hideout of the Development Parcels in order to build a high-density mixed-use

development, called “North Park,” which includes a town center, not less than 200,000 square

feet of retail commercial uses, not less than 100,000 square feet of office and industrial uses, and

approximately 3,500 residential dwelling units (“North Park”). North Park would bring an

estimated 10,000 residents to the area, dwarfing the approximately 900 current residents of the

Town of Hideout.

33. On information and belief, Defendant Town of Hideout does not have the current

capacity to provide municipal services to the Development Parcels.

34. On information and belief, Defendant Town of Hideout does not provide for itself the

following municipal services: water, sewer, law enforcement, fire and ambulance, transit,

animal control, public health services, justice courts and prosecution services, recreation, or

libraries. Instead, Defendant Town of Hideout relies upon other governmental entities in

Wasatch County to provide these municipal services.

35. On information and belief, municipal water and sewer are provided to Defendant Town

of Hideout by the Jordanelle Special Service District (“JSSD”).

36. On information and belief, Defendant Town of Hideout has approached JSSD to provide

municipal services to the Development Parcels.

37. In accordance with Utah Code §17D-1-401(4) and §17D-1-202(1), JSSD is a

special service district of Wasatch County, which is prohibited from annexing lands outside of

Wasatch County into the boundaries of its district.

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38. JSSD may service areas outside of the boundaries of its district where the “governing

body makes a finding that there is a public benefit to providing the service to the area outside the

special service district’s boundary.” Utah Code §17D-1-103(2)(p).

39. On information and belief, the governing body of JSSD has not made a finding of “public

benefit” and has not agreed to provide municipal services to the Development Parcels.

40. Defendant Town of Hideout has recently approached Plaintiff Summit County (July 14,

2020) to provide municipal services to the Development Parcels. Plaintiff Summit County has

declined.

41. Plaintiff Summit County and its local districts do not have adequate water or sewer

infrastructure in the area surrounding the Development Parcels.

42. On information and belief, Defendant Town of Hideout does not have a police

department. Instead, Defendant Town of Hideout relies upon the Wasatch County Sheriff for

law enforcement. The Wasatch County Sheriff is prohibited from exercising law enforcement

powers in Summit County. The Summit County Sheriff does not have the present capacity in

staff, equipment or facilities to service the law enforcement functions in the Development

Parcels should they be annexed into the Town of Hideout and be developed consistent with the

plans for North Park.

43. On information and belief, Defendant Town of Hideout does not have a fire department.

The Development Parcels are located within the boundaries of the Park City Fire Service District

(“Park City Fire”). Park City Fire does not have the present capacity in staff, equipment or

facilities to service the fire and ambulance functions in the Development Parcels should they be

annexed into the Town of Hideout and be developed consistent with the plans for North Park.

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44. On information and belief, Defendant Town of Hideout does not have an animal control

department. Summit County Animal Control does not have the present capacity in staff or

equipment to service the animal control functions in the Development Parcels should they be

annexed into the Town of Hideout and be developed consistent with the plans for North Park.

45. On information and belief, Defendant Town of Hideout receives public health services

from the Wasatch County Health Department. The Wasatch County Health Department cannot

operate in Summit County. The Summit County Health Department does not have the present

capacity in staff or equipment to service the public health functions in the Development Parcels

should they be annexed into the Town of Hideout and be developed consistent with the plans for

North Park.

46. On information and belief, Defendant Town of Hideout does not have a transit

department or district. Wasatch County does not have a transit district. The Development

Parcels are located within the boundaries of the Snyderville Basin Transit District (the “Transit

District”). The Transit District does not have the present capacity in staff, equipment or facilities

to service the transit functions in the Development Parcels should they be annexed into the Town

of Hideout and be developed consistent with the plans for North Park.

47. On information and belief, the Development Parcels are located within the boundaries of

the Snyderville Basin Special Recreation District (“Basin Recreation”). Basin Recreation does

not have the present capacity in staff, equipment, or facilities to service the recreation functions

in the Development Parcels should they be annexed into the Town of Hideout and be developed

consistent with the plans for North Park.

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48. In accordance with that certain Amended and Restated Development Agreement for

Flagstaff Mountain, Bonanza Flats, Richardson Flats, The 20-acre Quinn’s Junction Parcel and

Iron Mountain, dated March 2, 2007, and recorded as Entry No 00806100 in the Office of the

Summit County Recorder, Book 1850, beginning at Page 1897, Section 3.1 (the “Park City Deed

Restriction”), the property owner of the UPCM Parcels is obligated to annex its property into

Park City Municipal Corporation. Further the Park City Deed Restriction prohibits the types of

commercial, office, industrial, and residential development provided for in the plans for North

Park.

49. On August 22, 2019, the Hideout Town Council met in open session to consider the

amendment to the Annexation Policy Plan.

50. During the meeting, “Council Member Shadle felt it was important people understood the

Plan was just a plan, for the next 25 years, and would not happen without the input of the people

in the surrounding areas. If they were not supportive of it, it would not be done.”

51. Further, “Mayor Rubin responded that Summit County’s protestations concerning

Summit County land were clearly recognized. He explained the Town had also been contacted

by landowners in those areas who were willing to consider a potential participation with Hideout,

and the Plan was reflective of that. The Mayor added Hideout recognized it was not planning to

take any land owned and controlled by Summit County, and if there were areas as such, Hideout

would modify the Plan. However, third party lands located within Summit County would be

included.”

52. The Annexation Policy Plan, Appendix A, notes that in response to Plaintiff Summit

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County’s protests, “[s]ome of the parcels that are included are included at the request of property

owners.”

53. On information and belief, the landowners referenced by Mayor Rubin as having initiated

contact with Defendant Town of Hideout and requested inclusion of the Development Parcels in

the Annexation Policy Plan were Romney and Brockbank.

54. Thereafter, the Hideout Town Council approved the amendment to the Annexation Policy

Plan which included the Development Parcels.

Wells Fargo and Parcel No. SS-87 (Richardson Flat)

55. The Lower Silver Creek Area of Summit County, inclusive of Parcel SS-87, has been

designated as a Superfund Site, Richardson Flat Tailings NPL Site, by the Environmental

Protection Agency (“EPA”).

56. More specifically, Parcel SS-87 is encumbered by Operable Unit 1 (“OU1”), which

houses an active EPA approved hazardous waste disposal facility operated by the United Park

City Mines Company (“UPCM”).

57. On May 6, 2014, UPCM entered into an Administrative Order on Consent with the EPA,

which provided that UPCM was a Responsible Party (“RP”) with respect to the Richardson Flat

Tailings NPL Site (the “AOC”).

58. On information and belief, UPCM has defaulted on a portion of the AOC, which has

resulted in an enforcement action brought against it by the EPA.

59. On information and belief, the environmental clean-up and remediation costs associated

with the Richardson Flat Tailings NPL Site has been estimated at over $50,000,000.

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60. On April 15, 2015, Wells Fargo Bank, NA and Midtown Acquisitions, LP (together,

“Wells Fargo”) obtained a judicial judgment against UPCM.

61. On information and belief, over the past five years, Wells Fargo has, in a methodical

manner, foreclosed on nearly all of UPCM’s valuable real property assets.

62. On information and belief, the environmental clean-up and remediation costs of the

Richardson Flat Tailings NPL Site relies in part upon the future sale proceeds of Parcel SS-87,

where OU1 is located.

63. On November 22, 2019, Romney and Brockbank invited Wells Fargo to a meeting it had

requested with Summit County representatives to present a potential development plan that

included Parcel SS-87. At the meeting, Wells Fargo proposed carving out OU1 from the rest of

Parcel SS-87 in order to avoid environmental liability. Summit County representatives indicated

to Wells Fargo that foreclosing on only a portion of Parcel SS-87 would (A) constitute an illegal

subdivision of land under Utah Code §17-27a-601, 611, and Summit County Code §10-3-1, and

(B) constitute an attempt to defeat the EPA’s goal of environmental clean-up and remediation of

OU1 and the Richardson Flat Tailings NPL Site.

64. Utah Code §10-2-402(3) provides that a parcel to an annexation cannot be split without

the property owners consent. On information and belief, UPCM has not consented to the split of

Parcel SS-87.

65. On information and belief, three days later on November 25, 2019, Wells Fargo obtained

a writ of execution to foreclose on a portion of Parcel SS-87 (the “Writ of Execution”), having

the effect of dividing OU1 from the rest of Parcel SS-87, so that Wells Fargo can avoid any

potential environmental liability from OU1. It also would have the effect of severing the ability

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of the EPA to seize Parcel SS-87 and obtain the proceeds of its sale for the purpose of

environmental clean-up and remediation of the Richardson Flat Tailings NPL Site, leaving the

taxpayers of Summit County holding the “proverbial bag” with respect to those environmental

clean-up and remediation costs.

66. For the past five years, Wells Fargo has regularly obtained writs of execution directing

the Summit County Sheriff to seize UPCM property and sell it to satisfy the judgment.

67. On information and belief, in order to further the Enterprise and conceal the future

actions of Defendant Town of Hideout to quickly annex the Development Parcels without

adequate public notice, Wells Fargo actively sought to avoid the Summit County Sheriff, instead

using a constable to conduct a foreclosure sale required by the Writ of Execution and to

ultimately issue a foreclosure deed without placing a future owner on notice of the illegal

subdivision thereby created.

68. On information and belief, Wells Fargo hoped to have a portion of Parcel SS-87 annexed

into the Town of Hideout, where Parcel SS-87 could be granted urban development,

notwithstanding the violation of state land use law.

69. On information and belief, Wells Fargo has a purchase agreement for Parcels SS-87, SS-

88, and PP-28-A with Romney and Brockbank.

Relevant Legislative Background to HB 359 (2020)

70. The Utah Land Use Task Force (“LUTF”) is a collective group of developers,

municipalities, and counties, together with representatives of the Utah Association of Counties

(“UAC”), the Utah League of Cities and Towns (“ULCT”), and the Utah Property Rights

Coalition. The LUTF meets throughout the year to formulate proposed consensus land use

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legislation to resolve issues between the development community and local government.

Michael Ostermiller (“Ostermiller”) is the co-chair of the LUTF. Plaintiff Summit County is,

and at all relevant times was, an active participant in LUTF. Bruce Baird (“Baird”) participates

as an active member of the LUTF on behalf of developers. Baird is the attorney representing

Romney and Brockbank.

71. For the 2020 General Legislative Session, the LUTF worked on a consensus piece of

legislation regarding annexations of islands and peninsulas in situations where a municipality

was already providing substantial infrastructure or services to the island or peninsula. This

legislation was intended to address an issue in Weber and Davis Counties dealing with an

annexation which would leave an island or peninsula of unincorporated territory. Weber and

Davis Counties and the affected city were all consulted and agreed to the legislation. UAC and

ULCT, as well as a representative of Summit County who sits on the ULTF, were heavily

involved in formulating this legislation. This consensus legislation became HB 359.

72. Ostermiller, as co-chair of the LUTF, was aware of this background to HB 359 and of

each of the stakeholders’ involvement.

73. Representative Calvin R. Musselman was the primary sponsor of HB 359.

74. Senator Kirk A. Cullimore was the senate sponsor of HB 359.

75. HB 359 was introduced in the Utah House of Representatives (“Utah House”) on

February 20, 2020 as a consensus bill, 1 agreed upon by LUTF, Weber and Davis Counties (the

affected counties), Plaintiff Summit County (acting as a member of LUTF), UAC, and ULCT.

1
A consensus bill is one where all stakeholders who may be affected by the bill have vetted,
negotiated, and agreed upon the form of the legislation. Legislators understand the nature of
consensus bills and generally do not oppose them out of respect for all of the stakeholders.
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76. On February 25, 2020, HB 359 was heard before the Utah House Political Subdivisions

Committee. The ULCT and Ostermiller, co-chair of LUTF, testified in favor of HB 359, and

confirmed that it was a consensus bill. Based upon the consensus nature of the bill, HB 359

passed out of the committee unanimously.

77. On February 28, 2020, based upon the consensus nature of the bill, the Utah House

passed HB 359 unanimously.

78. On March 4, 2020, HB 359 was heard before the Utah Senate Government Operations

and Political Subdivisions Committee. Victoria Ashby, co-chair of LUTF, and Ostermiller, on

behalf of the Property Rights Coalition and Utah Association of Realtors, testified in favor of HB

359 as a consensus bill. Based upon the consensus nature of the bill, HB 359 passed out of the

committee unanimously.

Bait and Switch

79. On the night of March 11, 2020, the day before the 2020 Utah Legislative General

Session ended, Senator Cullimore introduced HB 359, 1st Substitute (“HB 359S1”). HB 359S1

included a new provision (Utah Code §10-4-418(3)) which provides that a municipality located

in one county can engage in what is commonly referred to as a “flagpole or cherry stem”

annexation in order to annex areas in a different county without the need for an annexation

petition and without the consent of that different county.

80. On information and belief, HB 359S1 was tailor made for Romney and Brockbank so

they would be able to annex the Development Parcels into Defendant Town of Hideout and

entirely override Summit County’s Snyderville Basin General Plan and Development Code.

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81. On information and belief, HB 359S1 was written by Baird and given to Ostermiller to

present to Senate sponsor Cullimore.

82. The affected county of HB 359S1 is Plaintiff Summit County.

83. HB 359S1 was neither vetted by UAC or by Plaintiff Summit County, nor agreed to by

UAC or by Plaintiff Summit County. HB 359S1 was not initiated by LUTF, UAC, ULCT or

Plaintiff Summit County. Rather, on information and belief, HB 359S1 was initiated by Romney

and Brockbank to further their Enterprise.

84. HB 359S1 was never shared with UAC or Plaintiff Summit County, and neither UAC,

nor Plaintiff Summit County had any knowledge that the Utah Legislature was considering HB

359S1.

85. HB359S1 was not a consensus bill.

86. On information and belief, Ostermiller did not disclose HB 359S1 to either UAC or

Plaintiff Summit County, even though he knew both to be stakeholders in HB 359, and knew

both would object to the new language.

87. On information and belief, Ostermiller, on behalf of Romney and Brockbank, provided

HB 359S1 to Senator Cullimore and led him to erroneously believe that the new language

amounted to “technical changes” that were not substantive and that it remained a “consensus

bill.”

88. Ostermiller later stated, “I accept full responsibility for that . . . I want to be 100% clear.

I told Sen. Cullimore and Rep. Musselman there was, as far as I knew, consensus between the

parties involved in drafting the legislation.” Ostermiller’s statement created a false impression

with the legislators. On information and belief, Ostermiller knew there was not consensus of the

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counties, did not inform UAC, and created a false impression with ULCT that the bill involved

the same parties as the original HB 359 and that UAC had consented to it. Ostermiller, as the co-

chair of LUTF, knew the limited nature of the original legislation which had consensus and what

it accomplished. Upon information and belief, Ostermiller knew the amendments in the first

substitute which deprived counties of the ability to protest and withhold consent to annexations

of this nature was contrary to the work of the LUTF in the original bill. Ostermiller admitted to

the Deseret News that “an attorney who was working for developers Brockbank and Romney,

Bruce Baird, had input on the legislation’s language.” Since HB 359 was only directed at an

issue in Davis and Weber Counties, there is no reason for Baird to have been involved in HB

359S1, unless it was to recraft it to benefit his clients, Romney and Brockbank. Romney has

admitted that “I had a couple of attorneys who were watching closely what was happening, so we

were aware of some legislation that was going on.” Romney has also stated that “Any time

there’s legislation that’s getting done that involves land-use authority, we’re always paying

attention. We made sure to hire – we made sure to monitor those things closely.” On

information and belief, those couple of attorneys acting on behalf of Romney and Brockbank

included Baird and Ostermiller.

89. On information and belief, Ostermiller did not disclose his relationship with Romney and

Brockbank or their attorney, Baird, to Senator Cullimore, nor did he disclose that HB 359S1 was

intended to specifically benefit Romney and Brockbank in their potential development in

Summit County.

90. On the floor of the Utah Senate, Senator Cullimore, relying upon the false impressions

created by Ostermiller, unintentionally misrepresented to the Utah Senate that HB 359S1 was a

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“consensus bill.” More specifically, Senator Cullimore stated: “The substitute – as I understand

– makes some technical changes in a different area of code, so the entire substitute is underlined

and looks like it’s making a lot of changes, but really it changed the title and did some technical

stuff and because of renumbering, it’s all underlined.” Senator Cullimore concluded, “This has

been a consensus bill where you have a landowner who may want to incorporate into a city or

municipality and a municipality that also wants the landowner, but for whatever reason, because

of an unincorporated county it may not be exactly contiguous, so what this does is undoes the

contiguous requirement for annexation in certain counties. This would not be applicable to Salt

Lake County or counties of the first class. And so that’s what this bill does. All parties have

discussed and agreed upon it.”

91. In a recent Deseret News story, Senator Cullimore has stated, “There was a

misunderstanding or misrepresentation to me, so because of that, obviously what I said on the

(Senate) floor was not accurate, so I’m going to be asking for a repeal to correct that.”

92. In under two minutes after introducing HB 359S1, in reliance upon Senator Cullimore’s

unknowing misrepresentation, the Utah Senate voted 27-1 to approve HB 359S1.

93. Approximately forty minutes later, the Utah House voted to concur with the Utah

Senate’s substituted bill, HB 359S1, relying upon the same false impressions created by

Ostermiller to Senator Cullimore that it was a “consensus bill” and amounted to only non-

substantive “technical changes.” Representative Musselman, the primary sponsor, indicated to

the Utah House that the substituted bill only addresses a rare set of circumstances where a

property, which is not contiguous, could be annexed into a local municipality, but assures the

21
legislators that local control will be maintained because everyone (property owners, city and

county) have to agree on the annexation. HB 359S1 does no such thing.

94. On March 28, 2020, the Governor signed HB 359S1 into law, relying upon the same false

impressions that HB 359S1 was a “consensus bill” and made only non-substantive “technical

changes.” HB 359S1 became effective on July 1, 2020.

95. HB 359S1 came to the attention of UAC in early July 2020, after it had already become

law.

96. In early July 2020, Plaintiff Summit County, UAC, and ULCT approached members of

leadership in the Utah Legislature about the circumstances surrounding the passage of HB

359S1. According to a letter from UAC, dated July 22, 2020:

. . . the substitute bill introduced a new concept that has never been contemplated
under Utah law; the notion that an annexation can occur without consideration from the
underlying county, in some specific circumstances. As the Association of Counties, we
believe this to be a dangerous concept that has significant statewide implications, and
should not be classified as mere “technical changes” to the original draft that dealt with
the handling of unincorporated islands when consensus has been reached. This concept
was never presented to the Association of Counties for consideration, and we would not
have supported a position that strips a county of their authority to consult or protest a
contested annexation. Lastly, none of this was ever presented to us in a way that would
have us believe that the bill would be used in Summit County on a long-disputed area of
the county. The discussion around the development of Richardson’s Flats and Quinn’s
Junction has been had for years, and to use this process as an “end-around” to those
deliberations seems flawed, at best.

While the Utah League of Cities and Towns was informed of a substitute, it was
conveyed as “technical changes” and it was inferred that it was for the original use-case,
Davis/Weber County, and the Association of Counties was okay with the proposed
changes. It was never conveyed that the intent was to use this in Summit County on an
already contested land use circumstance, where the annexation was going to be used to
“venue-shop” land-use policy. It is unfortunate that the consultants who were working on
this issue did not convey the intended use of the new language.

It should be further noted that during the House floor presentation on this
language the bill sponsor stated the following:

22
“If you’ll remember this bill was a consensus bill that came to us from the land use task
force. It was addressing a rare set of circumstances. Where a property could be annexed
into a local municipality that was not contiguous it was a very rare set of circumstances
and everybody had to agree county, city, property owners. . . the amendments even
ratchets that down even a little bit further.” – Day 44 – 8:14 pm MST

Unfortunately, that is the exact opposite of what this bill does. There is no
agreement among the city and county, and the substitute was not a “ratcheting down” of
the original bill, but was rather an expansion of the previous version.

Due to what we, as the Utah Association of Counties, believe to be an


unintentional misrepresentation of this substitute as a “consensus bill” and a “technical
clean-up, where “all parties agree with the annexation” when it in fact is a significant
policy shift in a delicately balanced area of law, we would respectfully request that the
language found in 10-2-418(3) be repealed in a manner that would disallow and
invalidate any current annexation that attempts to utilize this section of code. We would
request that such repeal action be taken at the earliest possible opportunity of the Utah
Legislature.

Like you, we find immense value in the integrity in the legislative process.
When that integrity is questioned, we believe an unhealthy erosion in public trust occurs.
Upon consultation with many of your colleagues, many members of both legislative
bodies used the presentation as a basis for support, despite those presentations falsely
stating the impact of the bill. In order to address the concerns of flawed process, and a
flawed law, we would encourage the parties to work through the Joint Developer/Local
Government Land-Use Taskforce for further consideration of this issue in a future
legislative session.

97. The Utah League of Cities and Towns sent a letter to Rep. Musselman and Sen.

Cullimore complaining about the method in which HB 359S1 was approved.

On Day 44, LUTF member and PRC lobbyist Mike Ostermiller approached
ULCT representative – Layton City Attorney Gary Crane who ULCT had
authorized to be involved in the drafting and negotiating of the initial bill on
behalf of our membership – and shared 1st substitute language. The 1st substitute
empowers cities to annex beyond their county of origin and removes the ability of
any county to protest the annexation. Since the bill expanded city authority, we
expressed our support. However, we also asked whether the counties were on
board because the 1st substitute reduced their land use authority. ULCT assumed
that the counties knew about the impacts of the 1st substitute.

In July 2020, we learned some key facts about the 1st substitute. First, we learned
that the counties were not aware of the 1st substitute and now adamantly opposed

23
it. Second, we learned that the 1st substitute targeted a fact pattern in Summit
County that ULCT knew nothing about during the legislative session.

Finally, the original version of HB 359 was a consensus LUTF bill. The LUTF
brings all land use stakeholders to the table to hammer out difficult compromises.
The LUTF process is successful because all stakeholders believe it is best to
thoughtfully vet issues in the interim than to battle throughout the limited time
provided in the legislative session. ULCT is concerned about the integrity of that
process because the legislature modified a consensus bill with major
consequences for one of the LUTF stakeholders. We don’t want the credibility of
the LUTF process to be in question because of a lack of communication during
the final moments of the legislative session.

The outcome of the 1st substitute is a mayor policy shift without the process of
sufficient stakeholder collaboration. ULCT does not want to benefit from an
outcome without that collaboration. Likewise, legislators voted on the 1st
substitute under the same impression that ULCT had – that the bill was a
consensus bill – but we all have since realized that the 1st substitute was not
consistent with the original consensus around HB 359. As a result, ULCT
supports the request from the Utah Association of Counties to repeal the 1st
substitute.

98. According to a story in the Deseret News, “Senate President Stuart Adams, R-Layton, is

supportive of including a possible repeal on the Legislature’s agenda, according to his

spokesman.”

99. On information and belief, the Governor and Utah Legislature intend to add the repeal of

HB 359S1 to the “official call” of the Sixth Special Session of the 2020 Utah Legislature,

currently scheduled for August 20, 2020.

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Relevant Legislative Background to SB 5004 (2020)

100. On June 18, 2020, SB 5004 was introduced into the Fifth Special Session of the 2020

Utah Legislature. It dealt with circumstances in Weber and Davis Counties, and like HB 359,

was a consensus bill and was sponsored by Senator Gregg Buxton.

101. Senator Daniel McCay introduced SB 5004S1, which was represented to Senator Buxton

as a friendly amendment. On information and belief, SB 5004S1 was developer (and lobbyist)

crafted special purpose legislation meant to further allow the annexation of a peninsula or island

in cases of an annexation using the newly created Utah Code §10-2-418(3).

102. Unbeknownst to the Utah Legislature, on information and belief, SB 5004S1 was

specifically written to benefit Romney and Brockbank in their plans to have Defendant Town of

Hideout annex the Development Parcels.

103. The primary senate sponsor of SB 5004, Senator Gregg Buxton, was completely unaware

of the intent, scope or purpose of SB 5004S1 according to a story in the Salt Lake Tribune.

104. SB 5004S1 was signed into law by the Governor on June 29, 2020.

Parcel SS-86 (Clouded Title)

105. Plaintiff Summit County has a real property interest in Parcel SS-86 as to an undefined

approximately two (2) acres of land and two rights-of-way (one of which is referred to as East

Richardson Flat Road), as set forth in that certain Quit Claim Deed, from James W. Quinn and

Jennie Quinn, Grantors, to Summit County, Grantee, dated June 1, 1927, recorded in the Office

of the Summit County Recorder on May 16, 1928, as Entry No. 40671, Book F, Page 25 (the

“Quinn Deed”).

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106. On February 25, 2020, Craig Coburn, legal counsel to Stichting, contacted Representative

Logan Wilde and Senator Ron Winterton, and requested that these two legislators intervene and

prevent a transfer of an easement over and along Parcel SS-86 (commonly referred to as West

Richardson Flat Road) from the Utah State Parks to Summit County.

107. On March 5, 2020, Plaintiff Summit County received a letter from Steven H. Bergman,

legal counsel for Stichting, who acknowledged the ownership interest of Summit County in

Parcel SS-86, and requested that Summit County voluntarily quit claim to Stichting, without

compensation, its potential interests in an additional 19 acres of land in Parcel SS-86, whose title

is colored by the Quinn Deed.

108. On June 27, 2020, Summit County declined to sign the quit claim deed. Title to all lands

to the north of the rights-of-way (20+ acres) remain colorable until Plaintiff Summit County’s

ownership interest is defined by mutual agreement or partition. Until such occurs, Plaintiff

Summit County and Stichting hold Parcel SS-86 as tenants-in-common.

109. On information and belief, this contested area of Parcel SS-86 has been designated on the

Pre-Annexation Agreement, Exhibit B (defined below) as the new Hideout Town Center.

Romney and Brockbank

110. On information and belief, Romney and Brockbank are not the title owners of the

Development Parcels, but rather have option agreements or purchase agreements with various

title owners (and some non-title owners) of the Development Parcels. Romney and Brockbank

do not have option agreements or purchase agreements with Plaintiff Summit County on Parcel

SS-86 or with JSSD on Parcel SS-87-B-X.

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111. On information and belief, in early 2019, Romney and Brockbank approached Defendant

Town of Hideout about an Enterprise to annex the Development Parcels located in Summit

County into the Town of Hideout (the “Annexation”) and entitle those parcels with urban

development in exchange for municipal revenue provided by the development of the same.

112. On information and belief, Romney and Brockbank intentionally sought to thwart the

Utah Open and Public Meetings Act, Utah Code §52-4-101, et. seq. (the “Open Meetings Act”)

by meeting with individual members of the Hideout Town Council, so that their meetings,

discussions, negotiations, deliberations, and decisions with respect to the Annexation would be

in secret and not subject to public scrutiny.

113. On information and belief, Romney and Brockbank convinced the Hideout Town Council

during these secret meetings to include in the Annexation Policy Plan the Development Parcels

with the understanding that Romney and Brockbank would find a way to change state law so that

the consent of Plaintiff Summit County would not be necessary.

114. On information and belief, Romney and Brockbank and their attorney, Baird, used

Ostermiller in his capacity as a lobbyist for the purpose of influencing the Utah Legislature to

unknowingly adopt tailored-made special purpose legislation meant to benefit Romney and

Brockbank in their Enterprise to annex the Development Parcels into the Town of Hideout

without Plaintiff Summit County’s consent and without the ability of Summit County to protest

such an annexation to the Boundary Commission.

115. On information and belief, Ostermiller did not reveal his relationship with Romney and

Brockbank and/or their attorney, Baird, by failing to make the required disclosure as required by

the Utah Lobbyist Disclosure and Registration Act, Utah Code §36-11-101, et. seq.

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116. On November 22, 2019, Brockbank on behalf of N. Brockbank Investments, LLC, and

Romney together with Wade Budge, an attorney representing Wells Fargo, met with Summit

County officials concerning the Development Parcels. They were encouraged to file a

development application and go through the statutorily required process that is open to the

public.

117. On December 20, 2019, Brockbank on behalf of N. Brockbank Investments, LLC, and

Romney again met with Summit County officials concerning the Development Parcels. They

were again encouraged to file a development application and go through the statutorily required

process that is open to the public.

118. On January 7, 2020, Brockbank on behalf of N. Brockbank Investments, LLC, and

Romney made an application for a General Plan Amendment to allow for mixed use urban

development on the Development Parcels (the “General Plan Amendment Application”).

119. On March 3, 2020, Brockbank on behalf of N. Brockbank Investments, LLC, and

Romney amended their General Plan Amendment Application to exclude Parcel SS-87 because

Wells Fargo did not yet control ownership of that property.

120. Romney later told a local newspaper that the General Plan Amendment Application “had

been bogged down,” when in reality it was scheduled to be presented to the Snyderville Basin

Planning Commission (“SBPC”) first at a June meeting and then at a July meeting. However,

Romney and Brockbank abruptly cancelled both meetings, the last being through an email from

Brockbank received by Plaintiff Summit County on June 29, 2020.

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121. According to Romney, he concluded that “there was no hope to getting something done

in Summit County,” because the Chair of the Summit County Council was not willing to meet

with him secretly while his General Plan Amendment Application was pending before the SBPC.

122. Romney and Brockbank’s interactions with Plaintiff Summit County were a subterfuge to

redirect the focus of Plaintiff Summit County away from Defendant Town of Hideout, all the

while waiting for the effective date of HB 359S1 and SB 5004 to allow them to surprise the

public, Plaintiff Summit County, Wasatch County, and Park City Municipal Corporation and

quickly consummate the Annexation without any meaningful, open or public process.

Richardson Flat Annexation

123. On or about March 31, 2020, Baird, on behalf of Romney and Brockbank, requested a

meeting with Defendant Town of Hideout Attorney, Daniel Dansie (“Dansie”), to discuss the

“new hideout annexation.”

124. On information and belief, the entire Enterprise was the invention of Romney and

Brockbank, which they pitched to Defendant Town of Hideout.

125. Throughout the months of April and May 2020, Baird, Brockbank, Dansie, and

Defendant Town of Hideout Mayor Phil Rubin met in secret meetings to discuss the annexation

into the Town of Hideout of the Development Parcels. All the while, Romney and Brockbank

were pretending to engage Summit County in a General Plan Amendment Application.

126. In June 2020, in furtherance of the Enterprise, Brockbank began secretly meeting with

individual members of the Hideout Town Council in groups of less than a quorum in an effort to

thwart the Open Meetings Act and keep all discussions, negotiations, deliberations, and decisions

29
regarding the Annexation secret. On June 17, 2020, Baird referred to this as “free lanc[ing] with

Council Members.”

127. During the various secret meetings, Baird laid out a strategy of “Ready, Aim, Fire.”

According to this strategy, Defendant Town of Hideout would adopt a pre-annexation agreement

(the “Pre-Annexation Agreement”) with Romney and Brockbank (“Ready”), enact a resolution

(“Resolution 2020-05”) of intent to annex the Development Parcels (“Aim”), and after

complying with the formality of a public hearing, approve the Annexation (“Fire”).

128. On information and belief, Defendant Town of Hideout, through its elected Mayor and

Town Council, agreed to the “Ready, Aim, Fire” strategy outside of any publicly noticed

meeting, and pre-cooked the result, having already decided to consummate the Annexation

regardless of public input or public process.

129. On June 30, 2020, Brockbank informed Dansie that he was concerned that Summit

County and Park City Municipal Corporation (“Park City”) may start “wondering what is going

on” since Brockbank abruptly cancelled the public hearing before the SBPC. Brockbank urged

Defendant Town of Hideout to hurry to “get a special meeting put together” to consummate the

Annexation.

130. On information and belief, numerous secret meetings were held in early July between

Brockbank, Baird, Dansie, Mayor Rubin, and members of the Hideout Town Council to discuss

the Annexation.

131. As of July 6, 2020, the posted July 9, 2020 Hideout Town Council Agenda (defined

below) did not list either the Pre-Annexation Agreement or Resolution 2020-05.

30
132. According to the Utah Public Notice Website, and in furtherance of the Enterprise, the

July 9, 2020 Hideout Town Council Agenda was amended on July 8, 2020 at 5:14 p.m. to add

the annexation agenda items (items 5 and 6) in order to ensure maximum secrecy. Further,

Brockbank pushed Mayor Rubin to do both the “Ready” and “Aim” portions of the strategy

together, in order to move the Enterprise along at a faster pace.

133. On July 8, 2020, Plaintiff Summit County became aware of a Hideout Town Council

meeting to be held on July 9, 2020.

134. The “Hideout, Utah Town Council Regular Meeting” Agenda for July 9, 2020 (the

“Agenda”), provided, among other items, for two “Agenda Items” which read as follows:

5. Public meeting to discuss a pre-annexation agreement in connection with


obtaining landowner’s consent for possible annexation; possible Town Council
action to authorize the Mayor to finalize and execute the pre-annexation
agreement
6. Public hearing to discuss possible Town Council action to adopt a
resolution indicating the Town Council’s intent to annex certain real property into
the Town

135. No reference was made in the Agenda to the specific parcels of land or property owners

with respect to either the Pre-Annexation Agreement or Resolution 2020-05.

136. The public packet, which accompanied the Agenda, did not contain a copy of either the

Pre-Annexation Agreement or Resolution 2020-05.

137. The first time that the entire Resolution 2020-05, with its accompanying map, was made

available to the public was after it was signed on or about July 14, 2020.

138. The annexation map displayed in the July 9th public meeting was materially misleading

from the actual annexation plan. Compare Figure 1 with Figure 2:

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Figure 1. Map Displayed at July 9, 2020 Hideout Town Council meeting

Figure 2. Map of the Actual Annexation Area (in yellow)

32
139. During the July 9, 2020 Hideout Town Council meeting, Mayor Rubin introduced these

items, indicating that Hideout Town Council members had reviewed the Pre-Annexation

Agreement and made prior comments concerning it. The Mayor asked for any additional

comments, to which three council members indicated that they had no further comments. The

fourth council member stated, “I have nothing further to add other than the feedback that the

other council members have provided prior to now.” Those council comments remained secret

and undisclosed at the time of the meeting.

140. The Mayor then commented, “then assuming that the agreement is modified to

accommodate the comments from council that were made electronically and that Mr. Brockbank

accepts the modifications I now would ask that the council authorize me to finalize and complete

the agreement on behalf of the town and if so I need a motion to do that.” No public comment

was allowed and the Hideout Town Council approved the Pre-Annexation Agreement

unanimously without ever disclosing to the public the actual Pre-Annexation Agreement.

141. On information and belief, there is no record of any other public meeting where the Pre-

Annexation Agreement was discussed by members of the Hideout Town Council.

142. The Pre-Annexation Agreement, dated July 14, 2020, provides that Brockbank will

indemnify and hold Defendant Town of Hideout harmless from any challenges to the

Annexation, including paying Defendant Town of Hideout’s attorney’s fees. This includes,

presumably, the cost of defending this lawsuit which was obviously anticipated by Defendant

Town of Hideout, Brockbank, and Romney as part of their joint Enterprise, which is indicative of

their relationship as joint partners in their Annexation plans.

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143. The Mayor then moved to the next item on the Agenda, which was Resolution 2020-05.

At this point, the Mayor showed for the very first time publicly, the actual area in Summit

County proposed for annexation, referring to the same as a “cherry stem up SR 248.” None of

the Hideout Town Council members had any questions. The public hearing was opened and

Christopher Robinson, a member of the Summit County Council, addressed the Hideout Town

Council, stating that “this is quite a land grab from our perspective and we’re a bit chagrinned

that city government wouldn’t at least give us [sic] some notice of this action, uh, it is only by

happen chance [sic] that we are participating tonight, and uh, we have a great deal of concern

with it and we are wondering if it would be possible to schedule a meeting with city leaders and

county leaders to discuss this before the pre-annexation agreement is signed and before this

resol[ution is adopted].” Council member Robinson noted that no one had seen the Pre-

Annexation Agreement, and this was the first time that anyone in the public had seen the

annexation map. A couple of other members of the public, including a member of the Wasatch

County Council, who also sits on the board of JSSD, urged the Hideout Town Council not to

take action without having provided adequate notice to the public. The Hideout Town Council,

without any debate or comment, approved Resolution 2020-05.

144. Resolution 2020-05 provides for a “flag” or “cherry stem” annexation beginning at State

Route 248 and proceeding northeast up the state highway to Parcel SS-87 in Summit County and

then proceeds south through Parcel SS-86 to the Stichting Parcels.

145. The Hideout Town Council met in closed executive sessions on April 8, 2020; April 30,

2020; May 4, 2020; June 8, 2020; June 11, 2020; June 25, 2020; July 9, 2020; July 15, 2020;

July 15, 2020; and July 23, 2020.

34
146. On July 15, 2020, Plaintiff Summit County made a record request under Utah’s

Government Records Access and Management Act to Defendant Town of Hideout requesting

information concerning the Enterprise and Annexation process.

147. Jan McCosh, the Town Administrator of Defendant Town of Hideout, responded on July

15, 2020, “Given almost the entirety of this business was done in executive sessions with me

specifically not in attendance, I’m forwarding the message to Dan Dansie, our town attorney for

response.”

148. Defendant Town of Hideout has scheduled the consummation of the Annexation for

August 12th and August 18th, to complete their strategy (“Fire”).

FIRST CLAIM FOR RELIEF


(Declaratory Judgment and Injunctive Relief –
Open Meetings Act Violation, Public Notice)

149. Plaintiff Summit County re-alleges and incorporates by reference each of the allegations

of Paragraphs 1 through 148 as set forth above.

150. This is a claim for declaratory and injunctive relief brought under Utah Code §§78B-6-

401; 52-4-302; and 52-4-303; and Rule 65A of the Utah Rules of Civil Procedure.

151. An actual dispute exists between Plaintiff Summit County and Defendant Town of

Hideout.

152. HB 359S1, now known as Utah Code §10-2-418(3), allows the annexation of

unincorporated property in one county to be annexed into a municipality in another county, in

accordance with the following:

(3) Notwithstanding Subsection 10-2-402(2) or (6), a municipality may annex an


unincorporated area without an annexation petition or the consent of the county in
which the area proposed for annexation is located, if:
(a) the area proposed for annexation:

35
(i) is located within a specified county;
(ii) includes private property that is located within a county that is not
the county in which the proposed annexing municipality is located;
(iii) includes real property that is:
(A) owned by a public entity; and
(B) located in the county in which the proposed annexing
municipality is located; and
(iv) does not include urban development;
(b) any portion of the private real property described in Subsection 3(a)(ii) is
located within two miles of the proposed annexing municipality’s
boundary; and
(c) each owner of private real property within the area proposed for
annexation consents in writing to the proposed annexation.

153. The annexation is initiated by a “resolution indicating the municipal legislative body’s

intent to annex the area, describing the area proposed to be annexed” and holding a “public

hearing on the proposed annexation no earlier than 30 days after the adoption of the resolution.”

Utah Code §10-2-418(6).

154. The Utah Open and Public Meetings Act, Utah Code §§52-45-101, et. seq. (the “Open

Meetings Act”), defines a “public body” to include a town council. Utah Code §52-4-103(9).

155. Utah Code §52-4-202(1) requires that a “public body shall give not less than 24 hours’

public notice of each meeting,” and that such public notice include the agenda, date, time and

place of the meeting.

156. Utah Code §52-4-202(6)(a) requires that the public notice agenda “provide reasonable

specificity to notify the public as to the topics to be considered at the meeting.”

157. Utah Code §52-4-202(6)(c) affirmatively states that “a public body may not take final

action on a topic in an open meeting unless the topic is (i) listed under an agenda item as

required by Subsection (6)(a); and (ii) included with the advance public notice required by this

section.”

36
158. Utah Code §52-4-302(1)(a) provides that “[a]ny final action taken in violation of Section

52-4-201, 52-4-202, 52-4-207, or 52-4-209 is voidable by a court of competent jurisdiction.”

159. Further, such “a suit to void final action shall be commenced within 90 days after the date

of the action.” Utah Code §52-4-302(2).

160. Defendant Town of Hideout intentionally published an amended Agenda on July 8, 2020

at 5:14 p.m., for the July 9, 2020 Hideout Town Council meeting with the intent of obfuscating

Agenda Items 5 and 6 by specifically failing to disclose either a description of the property to be

annexed or the property owners of the property to be annexed in that Agenda. As a result,

adequate public notice was not given, as the Agenda Items 5 and 6 were not described with

“reasonable specificity.”

161. Defendant Town of Hideout intentionally failed to provide copies of either the Pre-

Annexation Agreement or Resolution 2020-05 in its Agenda Packet, thus actively attempting to

keep the public from knowing the true purposes of Agenda Items 5 and 6.

162. Defendant Town of Hideout purposefully and intentionally did not provide the public

notice required by the Open Meetings Act, for the express purpose of hiding the true nature of its

actions from the general public and furthering the Enterprise, just as they have done continuously

since 2019 when the Enterprise was begun with Romney and Brockbank.

163. Defendant Town of Hideout displayed a misleading annexation map during the public

meeting to further confuse any members of the general public.

164. Upon information and belief, Defendant Town of Hideout has not consummated the

Annexation, but intends to do so on or before August 18, 2020.

37
165. Moreover, Plaintiff Summit County will suffer irreparable harm unless the Court enjoins

Defendant Town of Hideout from holding the August 12th public hearing and approving the

Annexation.

166. The threatened injury to Plaintiff Summit County outweighs whatever damage the

proposed injunction may cause to Defendant Town of Hideout.

167. The injunction, if issued, will not be adverse to the public interest and there is a

substantial likelihood that Plaintiff Summit County will prevail on the merits of its underlying

claim.

168. This Complaint and Petition for Declaratory Judgment and Injunctive Relief is the only

avenue of judicial relief available to Plaintiff Summit County because HB 359S1 removed the

ability of counties to protest annexations under Utah Code §10-2-418(3) to the Boundary

Commission.

169. Consequently, the Court should declare and rule that:

A. Defendant Town of Hideout violated the Open Meetings Act by not describing

with reasonable specificity Agenda Items 5 and 6 on the Hideout Town Council’s July 9, 2020

Agenda, failing to disclose the documents, and intentionally misleading the public during its July

9, 2020 meeting;

B. Defendant Town of Hideout’s action approving the Pre-Annexation Agreement

and Resolution 2020-05 are null and void;

C. Defendant Town of Hideout is enjoined from moving forward with a public

hearing and approving the Annexation; and

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D. This matter be referred to the Utah Office of the Attorney General for

investigation of Open Meetings Act violations.

170. Pursuant to Utah Code §52-4-303(4), the Court should award Plaintiff Summit County an

award of reasonable attorney fees and court costs.

SECOND CLAIM FOR RELIEF


(Declaratory Judgment and Injunctive Relief –
Open Meetings Act Violation, Closed and Secret Meetings)

171. Plaintiff Summit County re-alleges and incorporates by reference each of the allegations

of Paragraphs 1 through 170 as set forth above.

172. This is a claim for declaratory and injunctive relief brought under Utah Code §§78B-6-

401; 52-4-302; and 52-4-303; and Rule 65A of the Utah Rules of Civil Procedure.

173. An actual dispute exists between Plaintiff Summit County and Defendant Town of

Hideout.

174. The Utah Legislature has declared that the intent of the Open Meetings Act is to ensure

that government “take their actions openly; and conduct their deliberations openly.” Utah Code

§52-4-102(2). The Utah Supreme Court has interpreted the Open Meetings Act “broadly to

further the declared statutory purpose of openness. Because we construe the Act broadly, it

therefore follows that the exceptions be strictly construed.” Kearns-Tribune Corp. v. Salt Lake

County Commission, 2001 UT 55, ¶ 15, 28 P.3d 686, 690.

175. Utah Code §52-4-201 provides that “[a] meeting is open to the public unless closed under

Sections 52-4-204, 52-4-205, and 52-4-206.”

176. Utah Code §52-4-202(6)(c) affirmatively states that “a public body may not take final

action on a topic in an open meeting unless the topic is (i) listed under an agenda item as

39
required by Subsection (6)(a); and (ii) included with the advance public notice required by this

section.”

177. Utah Code §52-4-302(1)(a) provides that “[a]ny final action taken in violation of Section

52-4-201, 52-4-202, 52-4-207, or 52-4-209 is voidable by a court of competent jurisdiction.”

178. Further, such “a suit to void final action shall be commenced within 90 days after the date

of the action.” Utah Code §52-4-302(2).

179. In an action challenging a closed meeting, if a “judge determines that the public body

violated Section 52-4-204, 52-4-205, or 52-4-206 regarding closed meetings, the judge shall

publicly disclose or reveal from the recording or minutes of the closed meeting all information

about the portion of the meeting that was illegally closed.” Utah Code §52-4-304(2)(b).

180. Defendant Town of Hideout Administrator admitted that the Hideout Town Council

conducted “almost the entirety of this business” pertaining to the Annexation in “executive

sessions.”

181. Prior to taking action on the Annexation Policy Plan, the Hideout Town Council met in

closed executive sessions on June 27, 2019; July 11, 2019; and August 8, 2019.

182. Prior to taking action on the Pre-Annexation Agreement or Resolution 2020-05, as well

as directly thereafter, the Hideout Town Council met in closed executive sessions on April 8,

2020; April 30, 2020; May 4, 2020; June 8, 2020; June 11, 2020; June 25, 2020; July 9, 2020;

July 15, 2020; July 15, 2020; and July 23, 2020.

183. None of the executive session minutes include a list of the names of those present as

required by Utah Code §52-4-206(3).

40
184. On information and belief, Defendant Town of Hideout purposefully and intentionally

held one or more Hideout Town Council meetings to discuss the Pre-Annexation Agreement and

Resolution 2020-05 without providing the appropriate public notice.

185. On information and belief, Defendant Town of Hideout purposefully and intentionally

held one or more closed executive sessions to discuss the Pre-Annexation Agreement and

Resolution 2020-05, all in violation of Utah Code §52-4-205.

186. The discussion and negotiation of the Pre-Annexation Agreement and Resolution 2020-

05 are not proper purposes for which a public body can hold a closed executive meeting. Utah

Code §52-4-205.

187. On information and belief, the Hideout Town Council engaged in a purposeful course of

conduct intended to thwart the goals and ideals of the Open Meetings Act to “take their actions

openly; and conduct their deliberations openly” by individually meeting with Romney,

Brockbank, Baird, and Budge to discuss, negotiate, deliberate and decide on the Pre-Annexation

Agreement and Resolution 2020-05 in secret.

188. The votes held by the Hideout Town Council to approve the Pre-Annexation Agreement

and Resolution 2020-05 on July 9, 2020, were merely a subterfuge and pretext for the fact that

the Hideout Town Council had already discussed, negotiated, and approved both documents

outside of a properly noticed public meeting, as evidenced by the fact that (a) none of the

Hideout Town Council members had any comments on either document, (b) Hideout Town

Council members admitted during the July 9, 2020 meeting that they had discussed and

negotiated the documents outside of a noticed open meeting, (c) Hideout Town Council members

held individual meetings with Romney and Brockbank in secret to actively thwart the Open

41
Meetings Act, (d) there is no evidence of a properly noticed open or closed meeting having been

held for the purpose of discussion and negotiation of the documents, (e) the Town Administrator

has admitted that this entire Enterprise was done in executive sessions, (f) the knowingly false

statement of Town Council Member Shadle at the August 22, 2019 Hideout Town Council

meeting wherein he assured Plaintiff Summit County that unless there was uniform agreement as

to an annexation it would not be done; and (g) the course of conduct of Defendant Town of

Hideout in attempting to hide their actions to the general public both through the inadequate

Agenda, as set forth in the First Claim for Relief, and failure to provide any of the documents to

the general public prior to their vote on the same.

189. Upon information and belief, Defendant Town of Hideout has not consummated the

Annexation, but intends to do so on or before August 18, 2020.

190. Moreover, Plaintiff Summit County will suffer irreparable harm unless the Court enjoins

Defendant Town of Hideout from holding the August 12th public hearing and approving the

Annexation.

191. The threatened injury to Plaintiff Summit County outweighs whatever damage the

proposed injunction may cause to Defendant Town of Hideout.

192. The injunction, if issued, will not be adverse to the public interest and there is a

substantial likelihood that Plaintiff Summit County will prevail on the merits of its underlying

claim.

193. This Complaint and Petition for Declaratory Judgment and Injunctive Relief is the only

avenue of judicial relief available to Plaintiff Summit County because HB 359S1 removed the

42
ability of counties to protest annexations under Utah Code §10-2-418(3) to the Boundary

Commission.

194. Consequently, the Court should declare and rule that:

A. Defendant Town of Hideout shall deliver to the Court the Hideout Town

Council’s closed executive session recordings of June 27, 2019; July 11, 2019; August 8, 2019;

April 8, 2020; April 30, 2020; May 4, 2020; June 8, 2020; June 11, 2020; June 25, 2020; July 9,

2020; July 15, 2020; July 15, 2020; and July 23, 2020, to be reviewed “in camera” by the Court

for compliance with the Open Meetings Act. All portions of the recordings pertaining to the

Enterprise shall be released to the public;

B. Defendant Town of Hideout violated the Open Meetings Act by holding improper

meeting(s) of its Hideout Town Council prior to July 9, 2020 to discuss, negotiate, and approve

the Pre-Annexation Agreement and Resolution 2020-05;

C. Defendant Town of Hideout’s actions approving the Pre-Annexation Agreement

and Resolution 2020-05 are null and void;

D. Defendant Town of Hideout is enjoined from holding a public hearing and

approving the Annexation; and

E. This matter be referred to the Utah Office of the Attorney General for

investigation of Open Meetings Act violations.

195. Pursuant to Utah Code §52-4-303(4), the Court should award Plaintiff Summit County its

reasonable attorney fees and court costs.

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THIRD CLAIM FOR RELIEF
(Declaratory Judgment and Injunctive Relief –
Failure of Written Consent, Utah Code §10-2-418(3)(c))

196. Plaintiff Summit County re-alleges and incorporates by reference each of the allegations

of Paragraphs 1 through 195 as set forth above.

197. This is a claim for declaratory and injunctive relief brought under Utah Code §78B-6-401

and Rule 65A of the Utah Rules of Civil Procedure.

198. An actual dispute exists between Plaintiff Summit County and Defendant Town of

Hideout.

199. Parcel SS-86 is private real property as contemplated by Utah Code §10-2-418(3)(c).

200. Plaintiff Summit County is a tenant-in-common with Stichting on Parcel SS-86. Utah

Code §57-1-5(1)(b).

201. Parcel SS-86 has not been partitioned by the tenants-in-common or otherwise subdivided

by them.

202. Utah law provides that one co-tenant cannot encumber the property owned as tenants-in-

common without the consent of the other co-tenant. Verdi Energy Group, Inc. v. Nelson, 326

P.3d 104, 112 (Utah App. 2014) (citing Williams v. Singleton, 723 P.2d 421, 423 (Utah 1986)).

203. Plaintiff Summit County, as it relates to Parcel SS-86, is similarly situated to Stichting as

co-tenants of Parcel SS-86.

204. There is no public policy reason to treat Plaintiff Summit County different than Stichting.

205. Utah Code §10-2-418(3)(c) provides that an annexation requires “each owner of private

real property within the area proposed for annexation [to] consent [ ] in writing to the proposed

annexation.”

44
206. Utah Code §10-2-402(3)(a) requires that “[a]n annexation under this part may not include

part of a parcel of real property and exclude part of the same parcel unless the owner of that

parcel has signed the annexation petition under Section 10-2-403.”

207. While HB 359S1, now known as Utah Code §10-2-418(3), expressly excludes the

limitations contained in Utah Code §10-2-402(1)(b)(iii), (2), or (6), it does not exclude the

limitation contained in Utah Code §10-2-403(3)(a). All owners of a parcel must consent.

208. Plaintiff Summit County does not consent to the inclusion of any part of Parcel SS-86 in

the Annexation.

209. Upon information and belief, Defendant Town of Hideout has not consummated the

Annexation, but intends to do so on or before August 18, 2020.

210. Moreover, Plaintiff Summit County will suffer irreparable harm unless the Court enjoins

Defendant Town of Hideout from approving the Annexation.

211. The threatened injury to Plaintiff Summit County outweighs whatever damage the

proposed injunction may cause to Defendant Town of Hideout.

212. The injunction, if issued, will not be adverse to the public interest and there is a

substantial likelihood that Plaintiff Summit County will prevail on the merits of its underlying

claim.

213. This Complaint and Petition for Declaratory Judgment and Injunctive Relief is the only

avenue of judicial relief available to Plaintiff Summit County because HB 359S1 removed the

ability of counties to protest annexations under Utah Code §10-2-418(3) to the Boundary

Commission.

214. Consequently, the Court should declare and rule that:

45
A. Parcel SS-86 is private real property as contemplated by Utah Code §10-2-

418(3)(c);

B. Plaintiff Summit County is a tenant-in-common with Stichting as to Parcel SS-86;

C. Plaintiff Summit County is a private property owner as contemplated in Utah

Code §10-2-418(3)(c) and its written consent is required in order to include Parcel SS-86 in the

Annexation; and

D. Defendant Town of Hideout is enjoined from approving the Annexation, which

includes Parcel SS-86, without the written consent of Plaintiff Summit County.

FOURTH CLAIM FOR RELIEF


(Declaratory Judgment – Constitutionality of Utah Code §10-2-418(3)(c) and §10-2-
401(1)(h), as applied to Plaintiff Summit County and Parcel SS-86 under the Utah
Constitution, Article I, Section 24, Uniform Operation of Laws)

215. Plaintiff Summit County re-alleges and incorporates by reference each of the allegations

of Paragraphs 1 through 214 as set forth above.

216. This is a claim for declaratory relief brought under Utah Code §78B-6-401 and the Utah

Constitution, Article I, Section 24.

217. An actual dispute exists between Plaintiff Summit County and Defendant Town of

Hideout.

218. Plaintiff Summit County is a tenant-in-common with Stichting on Parcel SS-86. Utah

Code §57-1-5(1)(b).

219. Utah Constitution, Article I, Section 24, “Uniform Operation of Laws,” provides that

“[a]ll laws of a general nature shall have uniform operation.”

220. Utah Constitution, Article I, Section 24 “establishes different requirements than does the

federal Equal Protection Clause.” “[F]or a law to be constitutional under [this provision], it is

46
not enough that it be uniform on its face. What is critical is that the operation of the law be

uniform. A law does not operate uniformly if ‘persons similarly situated’ are not ‘treated

similarly.’” Compliance with Article I, Section 24 is based upon a two-part test: “First, a law

must apply equally to all persons within a class. Second, the statutory classifications and the

different treatment given the classes must be based on differences that have a reasonable

tendency to further the objectives of the statute.” State v. Mohi, 901 P.2d 991, 997 (Utah 1995).

See also Count My Vote, Inc. v. Cox, 2019 UT 60, ¶ 34, 452 P.3d 1109, 1116 (“The

constitutional prohibition is against disparate treatment of persons who are ‘similarly situated’”).

221. Plaintiff Summit County, as it relates to Parcel SS-86, is similarly situated to Stichting as

co-tenants of Parcel SS-86.

222. Both Plaintiff Summit County and Stichting have the same interest as landowners in

Parcel SS-86.

223. Plaintiff Summit County and Stichting are in the same class of landowners with respect to

Parcel SS-86.

224. Utah law provides that one co-tenant cannot encumber the property owned as tenants-in-

common without the consent of the other co-tenant. Verdi Energy Group, Inc. v. Nelson, 326

P.3d 104, 112 (Utah App. 2014) (citing Williams v. Singleton, 723 P.2d 421, 423 (Utah 1986)).

225. There is no public policy reason to treat Plaintiff Summit County different than Stichting.

226. Plaintiff Summit County is a “person” under Utah law. Utah Code §§75-1-201(32) &

(35).

47
227. Utah Code §10-2-418(3)(c) provides that an annexation requires “each owner of private

real property within the area proposed for annexation [to] consent[] in writing to the proposed

annexation.”

228. Utah Code §10-2-401(1)(h) defines “private” to exclude a “county.”

229. To the extent that Utah Code §10-2-418(3)(c) and §10-2-401(1)(h) are read together so as

to treat Plaintiff Summit County disparately from Stichting, and thus preclude Plaintiff Summit

County from exercising its rights as a landowner of Parcel SS-86, Utah Code §10-2-418(3)(c)

and §10-2-401(1)(h) are unconstitutional as they are applied to Plaintiff Summit County and its

ownership interest in Parcel SS-86 because these laws, as applied, treat persons within the same

class differently.

230. Senator Cullimore stated that the purpose of HB 359S1 was to allow noncontiguous

annexations by landowners in specific circumstances. Senator Cullimore did not differentiate

between public and private landowners.

231. In the alternative, if the Court were to find that Plaintiff Summit County is not a member

of the same landowner class as Stichting, then these statutes remain unconstitutional as applied

to Plaintiff Summit County, as there is no reason to treat the classes differently, as doing so does

not further the objectives of the statutory annexation scheme.

232. This Complaint and Petition for Declaratory Judgment and Injunctive Relief is the only

avenue of judicial relief available to Plaintiff Summit County because HB 359S1 removed the

ability of counties to protest annexations under Utah Code §10-2-418(3) to the Boundary

Commission.

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233. Consequently, the Court should declare and rule that Utah Code §10-2-418(3)(c) and

§10-2-401(1)(h), as applied in this circumstance, are unconstitutional and in violation of Utah

Constitution, Article I, Section 24.

FIFTH CLAIM FOR RELIEF


(Declaratory Judgment and Injunctive Relief –
Failure of Contiguity, Utah Code §10-2-402(1)(b)(i) and (ii))

234. Plaintiff Summit County re-alleges and incorporates by reference each of the allegations

of Paragraphs 1 through 233 as set forth above.

235. This is a claim for declaratory and injunctive relief brought under Utah Code §78B-6-401

and Rule 65A of the Utah Rules of Civil Procedure.

236. An actual dispute exists between Plaintiff Summit County and Defendant Town of

Hideout.

237. Utah Code §10-2-402(1)(b)(i) and (ii) require that all land within the area proposed for

annexation be contiguous to each other and to the municipal boundaries.

238. Plaintiff Summit County has indicated that it will not provide written consent to the

inclusion of Parcel SS-86 in the Annexation, which severs contiguity for all lands south of SS-86

in the proposed annexation, including the Stichting Parcels, SS-88, a portion of SS-87, and

Parcel PP-28-A.

239. Upon information and belief, Defendant Town of Hideout has not consummated the

Annexation, but intends to do so on or before August 18, 2020.

240. Moreover, Plaintiff Summit County will suffer irreparable harm unless the Court enjoins

Defendant Town of Hideout from approving the Annexation.

49
241. The threatened injury to Plaintiff Summit County outweighs whatever damage the

proposed injunction may cause to Defendant Town of Hideout.

242. The injunction, if issued will not be adverse to the public interest and there is a

substantial likelihood that Plaintiff Summit County will prevail on the merits of its underlying

claim.

243. This Complaint and Petition for Declaratory Judgment and Injunctive Relief is the only

avenue of judicial relief available to Plaintiff Summit County because HB 359S1 removed the

ability of counties to protest annexations under Utah Code §10-2-418(3) to the Boundary

Commission.

244. Consequently, the Court should declare and rule that:

A. Parcel SS-86 is excluded from the Annexation;

B. Parcels SS-125, SS-125-C, PP-28-2, SS-88, PP-28-A, PP-28-1, and a portion of

SS-87 are not contiguous to the Town of Hideout and are excluded from the Annexation; and

C. Defendant Town of Hideout is enjoined from approving the Annexation, which

includes Parcels SS-86, SS-125, SS-125-C, PP-28-2, SS-88, PP-28-A, PP-28-1, and a portion of

SS-87.

SIXTH CLAIM FOR RELIEF


(Declaratory Judgment and Injunctive Relief –
Inability to Serve, Utah Code §10-2-402(4))

245. Plaintiff Summit County re-alleges and incorporates by reference each of the allegations

of Paragraphs 1 through 244 as set forth above.

246. This is a claim for declaratory and injunctive relief brought under Utah Code §78B-6-401

and Rule 65A of the Utah Rules of Civil Procedure.

50
247. An actual dispute exists between Plaintiff Summit County and Defendant Town of

Hideout.

248. Utah Code §10-2-402(4) prohibits a municipality from annexing unincorporated area “for

the sole purpose of acquiring municipal revenue or to retard the capacity of another municipality

to annex the same or a related area unless the municipality has the ability and intent to benefit the

annexed area by providing municipal services to the annexed area.”

249. Defendant Town of Hideout has indicated that its primary purpose for the Annexation is

to acquire municipal revenue by allowing the development of North Park.

250. Defendant Town of Hideout’s claimed secondary purposes for the Annexation are a

subterfuge to avoid the prohibition in Utah Code §10-2-402(4).

251. Defendant Town of Hideout does not in itself have the present capacity to provide

municipal services to the Development Parcels and its proposed North Park development.

252. On information and belief, Defendant Town of Hideout cannot provide law enforcement,

fire and ambulance, transit, animal control, public health services, justice court and prosecution

services, recreation or library services to the Development Parcels with their increased densities

as is proposed in North Park.

253. Utah Code §10-2-428 provides that except with respect to fire and ambulance, a

municipal annexation does not result in a withdrawal of the annexed area from any local district.

Consequently, the Development Parcels, even after an annexation, will continue to be part of the

Transit District and Basin Recreation, which do not have the capacity to service these parcels

with the densities proposed in North Park.

51
254. JSSD is a Wasatch County Special Service District which serves the Wasatch County

portions of the Town of Hideout, but which cannot annex into another county without that

county’s consent. Utah Code §17D-1-401(4) and §17D-1-202(1). JSSD does not have the

consent of Plaintiff Summit County to annex the Development Parcels.

255. JSSD may service areas outside of the boundaries of its district where the “governing

body makes a finding that there is a public benefit to providing the service to the area outside the

special service district’s boundary.” Utah Code §17D-1-103(2)(p).

256. On information and belief, the governing body of JSSD has not made a finding of “public

benefit” and has not agreed to provide municipal services to the Development Parcels.

257. Plaintiff Summit County does not have water or sewer infrastructure in the area which

could be utilized to service North Park.

258. On information and belief, Defendant Town of Hideout intends to defeat the Park City

Deed Restriction in an effort to “retard the capacity of another municipality to annex the same or

a related area.” Utah Code §10-2-402(4).

259. Upon information and belief, Defendant Town of Hideout has not consummated the

Annexation, but intends to do so on or before August 18, 2020.

260. Moreover, Plaintiff Summit County will suffer irreparable harm unless the Court enjoins

Defendant Town of Hideout from approving the Annexation.

261. The threatened injury to Plaintiff Summit County outweighs whatever damage the

proposed injunction may cause to Defendant Town of Hideout.

52
262. The injunction, if issued will not be adverse to the public interest and there is a

substantial likelihood that Plaintiff Summit County will prevail on the merits of its underlying

claim.

263. This Complaint and Petition for Declaratory Judgment and Injunctive Relief is the only

avenue of judicial relief available to Plaintiff Summit County because HB 359S1 removed the

ability of counties to protest annexations under Utah Code §10-2-418(3) to the Boundary

Commission.

264. Consequently, the Court should declare and rule that:

A. Defendant Town of Hideout’s sole purpose for this Annexation is to acquire

municipal revenue or to retard the capacity of Park City to annex the same;

B. Defendant Town of Hideout does not have the capacity to provide municipal

services to the Development Parcels; and

C. Defendant Town of Hideout is enjoined from approving the Annexation.

SEVENTH CLAIM FOR RELIEF


(Declaratory Judgment and Injunctive Relief –
Failure of Consent and Contiguity, Utah Code
§10-2-402(1)(b)(i) and (ii), Parcel SS-87)

265. Plaintiff Summit County re-alleges and incorporates by reference each of the allegations

of Paragraphs 1 through 264 as set forth above.

266. This is a claim for declaratory and injunctive relief brought under Utah Code §78B-6-401

and Rule 65A of the Utah Rules of Civil Procedure.

267. An actual dispute exists between Plaintiff Summit County and Defendant Town of

Hideout.

53
268. Utah Code §10-2-402(1)(b)(i) and (ii) require that all land within the area proposed for

annexation be contiguous to each other and to the municipal boundaries.

269. Utah Code §10-2-402(3)(a) requires that “[a]n annexation under this part may not include

part of a parcel of real property and exclude part of the same parcel unless the owner of that

parcel has signed the annexation petition under Section 10-2-403.”

270. While HB 359S1, now known as Utah Code §10-2-418(3), expressly excludes the

limitations contained in Utah Code §10-2-402(1)(b)(iii), (2), or (6), it does not exclude the

limitation contained in Utah Code §10-2-403(3)(a).

271. In statutory interpretation, courts attempt to give effect to the legislative intent of statutes

as evidenced by the statute’s plain language. Summit Water Distribution Company v. Summit

County, 123 P.3d 437, 442 (Utah 2005); Jensen v. Intermountain Health Care, Inc., 679 P.2d

903, 906 (Utah 1984). This is because courts have determined that “[t]he best evidence of the

[legislative] intent is the statute’s plain language.” Marion Energy, Inc. v. KFJ Ranch

Partnership, 267 P.3d 863, 866 (Utah 2011). In doing so, courts “presume that the legislature

used each word advisedly and give effect to each term according to its ordinary and accepted

meaning.” C.T. ex. Rel. Taylor v. Johnson, 977 P.2d 479, 481 (Utah 1999) (emphasis added).

Courts “presume that the expression of one [term] should be interpreted as the exclusion of

another.” Marion Energy, Inc., 267 P.3d at 866. Further, courts “interpret statutes to give

meaning to all parts, and avoid rendering portions of the statute superfluous.” State v. Watkins,

309 P.3d 209, 213 (Utah 2013) (emphasis added). “To do so, [courts] read the plain language of

the statute as a whole, and interpret its provisions in harmony with other statutes in the same

54
chapter and related chapters.” State v. Barrett, 127 P.3d 682, 689 (Utah 2005) (emphasis

added).

272. In accordance with statutory interpretation, Parcel SS-87 cannot be split for purposes of

annexation without the consent of UPCM.

273. A writ of execution or its foreclosure sale does not have authority to subvert land use law

and approve the subdivision of land outside of the statutory processes set forth in Utah Code

§17-27a-601, 611, and Summit County Code §10-3-1.

274. Parcel SS-87 has not been subdivided pursuant to state and county laws and ordinances,

and remains a single parcel of land.

275. On information and belief, UPCM has not given consent to annex a portion of Parcel SS-

87 into the Town of Hideout.

276. Therefore, Defendant Town of Hideout does not have contiguity with any of the

Development Parcels.

277. Consequently, the Court should declare and rule that:

A. Parcel SS-87 requires the consent of UPCM or it should be excluded from the

Annexation;

B. Parcels SS-87, SS-86, SS-125, SS-125-C, PP-28-2, SS-88, PP-28-A, and PP-28-1

are not contiguous to the Town of Hideout and are excluded from the Annexation; and

C. Defendant Town of Hideout is enjoined from approving the Annexation, which

includes Parcels SS-87, SS-86, SS-125, SS-125-C, PP-28-2, SS-88, PP-28-A, and PP-28-1.

55
PRAYER FOR RELIEF

WHEREFORE, Plaintiff Summit County prays for judgment against the Defendant

Town of Hideout on each of the foregoing claims for relief and all available additional relief as

follows:

FIRST CLAIM FOR RELIEF (Declaratory Judgment and Injunctive Relief – Open

Meetings Act Violation, Public Notice): For judgment in favor of Plaintiff Summit County

declaring and ordering that:

A. Defendant Town of Hideout violated the Open Meetings Act by not describing

with reasonable specificity Agenda Items 5 and 6 on the Hideout Town Council’s

July 9, 2020 Agenda, failing to disclose the documents, and intentionally

misleading the public during its July 9, 2020 meeting;

B. Defendant Town of Hideout’s action approving the Pre-Annexation Agreement

and Resolution 2020-05 are null and void;

C. Defendant Town of Hideout is enjoined from moving forward with a public

hearing and approving the Annexation; and

D. This matter be referred to the Utah Office of the Attorney General for

investigation of Open Meetings Act violations.

SECOND CLAIM FOR RELIEF (Declaratory Judgment and Injunctive Relief – Open

Meetings Act Violation, Closed and Secret Meetings): For judgment in favor of Plaintiff

Summit County declaring and ordering that:

A. Defendant Town of Hideout shall deliver to the Court the Hideout Town

Council’s closed executive session recordings of June 27, 2019; July 11, 2019;

56
August 8, 2019; April 8, 2020; April 30, 2020; May 4, 2020; June 8, 2020; June

11, 2020; June 25, 2020; July 9, 2020; July 15, 2020; July 15, 2020; and July 23,

2020, to be reviewed “in camera” by the Court for compliance with the Open

Meetings Act. All portions of the recordings pertaining to the Enterprise shall be

released to the public.

B. Defendant Town of Hideout violated the Open Meetings Act by holding improper

meeting(s) of its Hideout Town Council prior to July 9, 2020 to discuss, negotiate,

and approve the Pre-Annexation Agreement and Resolution 2020-05;

C. Defendant Town of Hideout’s actions approving the Pre-Annexation Agreement

and Resolution 2020-05 are null and void;

D. Defendant Town of Hideout is enjoined from holding a public hearing and

approving the Annexation; and

E. This matter be referred to the Utah Office of the Attorney General for

investigation of Open Meetings Act violations.

THIRD CLAIM FOR RELIEF (Declaratory Judgment and Injunctive Relief – Failure of

Written Consent, Utah Code §10-2-418(3)(c)): For judgment in favor of Plaintiff Summit

County declaring and ordering that:

A. Parcel SS-86 is private real property as contemplated by Utah Code §10-2-

418(3)(c);

B. Plaintiff Summit County is a tenant-in-common with Stichting as to Parcel SS-86;

57
C. Plaintiff Summit County is a private property owner as contemplated in Utah

Code §10-2-418(3)(c) and its written consent is required in order to include Parcel

SS-86 in the Annexation; and

D. Defendant Town of Hideout is enjoined from approving the Annexation, which

includes Parcel SS-86, without the written consent of Plaintiff Summit County.

FOURTH CLAIM FOR RELIEF (Declaratory Judgment – Constitutionality of Utah Code

§10-2-418(3)(c) and §10-2-401(1)(h), as applied to Plaintiff Summit County and Parcel SS-

86 under the Utah Constitution, Article I, Section 24, Uniform Operation of Laws): For

judgment in favor of Plaintiff Summit County declaring and ordering that:

A. Utah Code §10-2-418(3)(c) and §10-2-401(1)(h), as applied in this circumstance, are

unconstitutional and in violation of Utah Constitution, Article I, Section 24.

FIFTH CLAIM FOR RELIEF (Declaratory Judgment and Injunctive Relief – Failure of

Contiguity, Utah Code §10-2-402(1)(b)(i) and (ii)): For judgment in favor of Plaintiff Summit

County declaring and ordering that:

A. Parcel SS-86 is excluded from the Annexation;

B. Parcels SS-125, SS-125-C, PP-28-2, SS-88, PP-28-A, PP-28-1, and a portion of

SS-87 are not contiguous to the Town of Hideout and are excluded from the

Annexation; and

C. Defendant Town of Hideout is enjoined from approving the Annexation, which

includes Parcel SS-86, SS-125, SS-125-C, PP-28-2, SS-88, PP-28-A, PP-28-1,

and a portion of SS-87.

58
SIXTH CLAIM FOR RELIEF (Declaratory Judgment and Injunctive Relief – Inability to

Serve, Utah Code §10-2-402(4)): For judgment in favor of Plaintiff Summit County declaring

and ordering that:

A. Defendant Town of Hideout’s sole purpose for this Annexation is to acquire

municipal revenue or to retard the capacity of Park City to annex the same;

B. Defendant Town of Hideout does not have the capacity to provide municipal

services to the Development Parcels; and

C. Defendant Town of Hideout is enjoined from approving the Annexation.

SEVENTH CLAIM FOR RELIEF (Declaratory Judgment and Injunctive Relief –

Failure of Consent and Contiguity, Utah Code §10-2-402(1)(b)(i) and (ii), Parcel SS-87):

For judgment in favor of Plaintiff Summit County declaring and ordering that:

A. Parcel SS-87 requires the consent of UPCM or it should be excluded from the

Annexation;

B. Parcels SS-87, SS-86, SS-125, SS-125-C, PP-28-2, SS-88, PP-28-A, and PP-28-1

are not contiguous to the Town of Hideout and are excluded from the Annexation;

and

C. Defendant Town of Hideout is enjoined from approving the Annexation, which

includes Parcels SS-87, SS-86, SS-125, SS-125-C, PP-28-2, SS-88, PP-28-A, and

PP-28-1.

AS TO EACH CLAIM FOR RELIEF, Plaintiff Summit County prays for reasonable

attorney’s fees, costs, and prejudgment interest as allowed by law; and such other and further

relief as this Court determines is required to do equity and justice under the circumstances.

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RESPECTFULLY SUBMITTED this 31st day of July, 2020.

SUMMIT COUNTY ATTORNEY'S OFFICE

Margaret H. Olson
By:_______________________________________
Margaret H. Olson

David L. Thomas
By:_______________________________________
David L. Thomas

Jami R. Brackin
By: ______________________________________
Jami R. Brackin
Attorneys for Plaintiff Summit County

Plaintiff Summit County’s address:


Summit County Courthouse
60 N. Main Street
P.O. Box 128
Coalville, Utah 84017

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