Smart Growth Ogden Legal Opinion

MAYOR'S DECLARATION DOES NOT PROTECT PARK IN PERPETUITY

November 1, 2007

Smart Growth Ogden has asked several attorneys to review the Declaration of Covenants, Conditions, and Restrictions for Mt. Ogden Park that Mayor Godfrey signed on October 25. Among the attorneys is J. Craig Smith of Salt Lake City, an expert in land use and real estate law. All of the attorneys we spoke with, including Smith, are in general agreement over the following assessment of the Declaration.

While this document appears to be a positive step toward better protecting the park, and we appreciate the mayor's good intentions in signing it, we have four concerns:

1. According to the Ogden City Code, the mayor may not place an encumbrance such as this upon a significant piece of real property without first giving 14 days notice to the city council and the public, and then holding a public hearing on the proposed encumbrance. Ogden City Code 4-3A-5(C). Because no such notice or public hearing has taken place, it would appear that the mayor's declaration was not legally executed. Rather than risk legal challenges to the new restrictions in the future, we urge the mayor to follow the required procedure.

2. This declaration does not and cannot restrict the use of the parklands "in perpetuity", because restrictive covenants can always be revoked through unanimous agreement of the affected property owners. In this case there is only a single property owner--the city--so there is nothing to stop the city from removing the restrictions through the same process by which they are adopted.

3. The language of the declaration contains a significant loophole, allowing any "improvements" to the property (including roads and structures) that are considered beneficial to Ogden City. Any of the existing park features, including the golf course, trails, and open space, could be reduced or eliminated without violating the language of the declaration.

4. The legal description of the affected property contains numerous errors and, more importantly, excludes the area south of Strong's Canyon around the Ogden City water tanks. This area includes a heavily used portion of the Mt. Ogden Exercise Loop trail. We don't understand why this area was excluded, unless the mayor wishes to leave open the possibility of selling this area for private development.

Meanwhile, the city council has taken a positive step toward protecting Mt. Ogden Park, by adopting the Mt. Ogden Community Plan with its new language requiring that the entire park be retained in public ownership. While this provision could also be repealed in the future through similar legislative action, we believe it adds an important check and balance against the mayor's authority to sell city property.

For more information please contact:

Mike Vause
Smart Growth Ogden
801-392-6253 / 801-725-3113

J. Craig Smith
Smith Hartvigsen, P.L.L.C.
801-413-1600