The Tooele County Commission is looking to lawyer up and South Rim residents have filed a complaint with the state attorney general — all in anticipation of the commissioners’ position on a gravel pit near South Rim.
Jay Harwood of South Side Gravel, L.L.C., who is the owner of the gravel pit that covers approximately 15 acres south of Silver Avenue from South Rim, wants to extract gravel from an additional 160 acres that surround the current pit.
Harwood recently withdrew a request to rezone the property for gravel extraction. He claimed a recent advisory opinion from the state’s Office of the Property Rights Ombudsman means he can expand South Side Gravel Pit to the boundaries of the present parcels where the pit is located.
But residents of South Rim, armed with a copy of a 2001 Development Agreement for their subdivision, have called for the gravel pit to be closed. The agreement says the pit can be used for the developer’s project and then closed.
Both sides are waiting to see what stand the county commissioners take on the gravel pit.
Tooele County Attorney Scott Broadhead forwarded a confidential legal opinion on the gravel pit to the county commission last week.
While the county attorney’s document is confidential, Broadhead did tell the Transcript Bulletin that, as part of his legal opinion, he told the commissioners the matter was likely to end up in litigation.
“Because of that likelihood, I suggested that we be proactive, rather than reactive, and hire outside counsel to assist us before the county takes any further action,” Broadhead said.
The county’s insurance carrier provides coverage for damages and legal expenses, depending on the type of claim filed. The insurance carrier has attorneys under contract to provide legal services based upon their expertise and area of practice, according to Broadhead.
“I suggested that we contact our insurance company in anticipation of litigation and consult with one of their attorneys under contract to provide services under our policy,” he said.
Some South Rim residents question the need for outside counsel, claiming that a competent county attorney’s opinion should be sufficient.
They also are concerned that the county commission may be attorney shopping, looking for an attorney to write an opinion that fits a predetermined decision.
But seeking the opinion of outside counsel is not a reflection on the competency of the county attorney’s office, according to Tooele County Commissioner Shawn Milne.
“The county attorney is the general legal counsel for the county and its officers,” Milne said. “Seeking an opinion from a specialist on this issue is the prudent thing to do.”
Milne also rejected the idea that the commissioners are attorney shopping.
“We, or at least I, haven’t made up our minds on this issue,” he said. “We have been criticized in the past for making decisions too quickly without consulting proper legal counsel. Now that we are taking time to consult with attorneys, we are getting jumped on.”
The county may end up with an opinion that supports the South Rim resident’s position, according to Milne.
Some South Rim residents claim the decision about the gravel pit should be simple.
They point to language in the South Rim Development Agreement that states the developer will be allowed to use the gravel pit for the South Rim project and the improvements to Silver Avenue, and then the pit will be closed.
“It’s very simple,” said South Rim resident Matt McCarty. “The county should immediately enforce the South Rim Development Agreement from 2001 and have the land owners close and reclaim the gravel pit. They should have done that years ago.”
But the issue isn’t as cut and dry as a layman’s interpretation of the development agreement might suggest, according to Milne.
“Don’t think I am taking sides here,” he said. “I can’t disclose the specifics because we are talking about pending litigation, but there are legal issues that complicate this. Some of it involves court cases outside of our county.”
But some South Rim residents aren’t waiting for a decision from the county commission.
“The latest stance taken by Tooele County needs to be investigated,” said Josh Maher of South Rim. “Why do they need outside counsel? What about the land agreement from 2001? Why won’t they allow this process to proceed in public meetings? Is the county attorney being loyal to his old boss’s family, the Hogan’s? The county officials will not answer when we ask the tough questions.”
Broadhead was a deputy Tooele County Attorney for Tooele County Attorney Doug Hogan. Hogan served as the county attorney from 2006 through 2014 when he resigned after being confirmed by the Utah State Senate to serve as a 3rd District Court Judge.Several South Rim residents have placed their names on a complaint against Tooele County that they filed electronically with the state attorney general on July 5.
In their complaint, South Rim residents raise concerns that the development agreement for South Rim was not included in documents released to them by the county in response to a request for documents related to the gravel pit. They also assert that the previous county attorney was a member of the family that developed South Rim, and that the current owner of the gravel pit has made contributions to a commissioner’s election campaign.
“We are seeking the oversight of the attorney general’s office to resolve the conflicts of interest in this matter and ask that the agreement from 2001 be upheld,” reads the complaint.
County officials said they can’t answer specific questions on the gravel pit at this time.
“We have not sat down together as commissioners and decided how to proceed,” said Tooele County Commission Chairman Wade Bitner. “We are still looking at the legal opinion. We also have to proceed with caution, as there is a potential for a lawsuit here.
“When we decide, we will make our position public along with the legal reasoning to support our decision,” Bitner said.