Friends of Virgin, Inc.
P.O. Box 790005
Virgin, Utah 84779-0005
www.friendsofvirgin.com
If you wish to be removed from our email list please send a message to friends@friendsofvirgin.com.
Our Purpose:
To promote the continued health, safety, security, beauty, and viability of the town of Virgin, Utah, through the combined efforts and talents of the individuals and entities herein known as the Friends of Virgin.  Though the Friends of Virgin differ dramatically in viewpoint and political affiliation, they unite here to assist in informing and educating local residents and decision-makers; promoting openness in the town government and free access to its records; and encouraging public input as well as its serious consideration by officials.
Board of Directors:
Lee Ballard, president
Adele Pincock, secretary
Sandra Grow, treasurer
Linda Collet, director
DRD Properties South, director
Jan Walker, director
OPINION
What happened to the FOVI appeal?
As reported in a March 24th press release, after much discussion and weighing of alternatives, the FOV have reluctantly filed a motion to dismiss their appeal of Virgin Town's September 2002 decision to grant permits for a large youth facility to be built here in town.  The building would house up to 48 teenage boys, who may have behavioral or substance abuse problems, in a residential treatment center on Highway 9. 
On October 3rd and again on January 2nd, FOV filed an appeal to the Virgin Town Board of Adjustment (BOA).  At the time, we expressed our concerns about safety, the cleanliness of our  river, infrastructure costs and possible liabilities to the town, aesthetics, adherence to our zoning ordinance, and the democratic rights of the townspeople (over 100 voting residents, a hefty percentage of the voting population in our small town, signed a petition last year asking that the Town deny such a proposal).  
Rather than simply convene the BOA, the town responded to our complaint with a letter.  Attorney Russ Gallian, standing in on the issue for Town Attorney Chris Edwards who declared a conflict of interest as partner in, attorney for, and representative of the Liahona Academy, wrote a letter stating his opinion that the Board of Adjustment lacked jurisdiction over the matter.  We are uncomfortable in our suspicion that this decision was made without the knowledge of the Town Council, who we believe should have been fully informed and active in examining alternatives and deciding how to respond.  The specific wording of state law [UCA 10-9-704(2)] gives jurisdiction to the BOA for appeals of conditional use permits granted by planning commissions, without addressing other possibilities.  The Virgin Town Zoning Ordinance gives the job of granting conditional use permits to the Town Council.  However, the VT ordinance also says that the Virgin Town BOA “…shall hear and decide…appeals from zoning decisions applying the zoning ordinance…” (Chapter 3-4 VUZO). An appeal of a conditional use permit to the Board of Adjustment stays further action in reliance on the permit.
Once having been informed that Gallian advised the BOA not to convene for a hearing, Friends of Virgin attorney Anthony Woolf filed a petition in the Fifth District Court asking that the permit be declared void because the use in question is not permitted according to the Virgin Uniform Zoning Ordinance, because the vote had been tainted by a conflict of interest, and because of numerous errors in procedure, including the failure of the Town Council to properly make findings on the record as required in Chapter 8, section 7. We understood that a possible outcome of this filing could be a court order requiring the BOA to convene and hear the appeal.
In response, Russ Gallian, who has now been appointed Virgin’s Town Attorney, filed a motion to dismiss the petition, citing among other reasons that it failed to “…join a necessary and indispensable party, the Liahona Academy…”  Again, we are disturbed to think that this response was chosen without input from the Town Council.
We will now try to explain our difficult decision to drop the court case.  It was always our desire to take care of this matter locally, and at minimal use of already deficient Town funds, via the Board of Adjustment. We had and have no desire to file against Liahona Academy, but merely wanted all procedures and decisions to comply with state law as well as our Zoning Ordinance and General Plan. We wanted resident’s opinions to be considered, and for deliberations to be made openly.  Our stated purpose requires us to "...promote the health, safety, security, beauty, and viability of Virgin".  A courtroom conflict will further deplete Virgin’s budget and be destructive to harmony in our town. Worse yet, a victory for the Friends in district court would be bitter at best, since it likely would send the Town into further legal battles where the new opponent, unlike the Friends, will be asking for considerable monetary damages rather than just the reversal of a decision. We maintain our strong objection to the approval of the conditional use permit, and in spite of the fact we feel confident our legal and moral arguments would ultimately prevail, we simply cannot reconcile court action with our stated principles [see our purpose on page 1].  We do not wish to be the cause of further hardship to the general population of Virgin.   We will continue to hope that the wrongs done our town will be righted by other, less divisive, means. 
Reconsideration & subdivision  problems
On March 20th the Virgin Town Council agenda included the item “Discussion and possible reconsideration of Council’s decision concerning Liahona Academy”.  Reasons to reconsider given by Councilman Bill Johnson included that the decisions may have been made under the influence of one who had financial interests in the project (there is some question as to whether Mayor Lee was then or is now a partner in ownership of the property where the project was proposed), and that the decisions were made under substantial misinformation from various parties.  Also, Councilman Ken Cornelius pointed out that the subdivision approval, to which the other permits were subject, may have been illegal, and the facts regarding it misrepresented.  Attorney Gallian agreed but stated that a reversal of the conditional use permit, once granted, could create great liability to the Town.  This was brought home by a new attorney for Liahona Academy, Curtis Jensen, who announced the Academy’s intention, in the event the approval was reversed, to take action against Virgin Town to recover damages and expenses incurred in reliance on the permits.
The issue of the ownership and subdivision of the land where Liahona Academy wishes to build is somewhat complex, and we will now digress for a moment here to explain what we understand to be the situation.  First, any member of the Town Council or Planning Commission is required by the Utah Ethics Act (Chapter 10, title 9, UCA) to make a formal declaration whenever the board in question deliberates on an issue involving his or her own potential profit.  Last summer, representatives of the Liahona Academy applied to the Town for a subdivision approval.  Each time they were asked, Mayor Lee, Chris Edwards, or other Liahona representatives stated that the proposed facility site was on an 80 acre parcel owned by Jerry Woods of Walking X Ranches.  A deed was presented which we understood to have shown the transfer of the 80 acre parcel from the mayor and his partner to Walking X Ranches.  We also understood the applicants to have produced a letter from Jerry Woods granting them agency to proceed with subdividing a 2.5 acre lot off from the larger parcel.  This request seemed to us suspect in itself, since Virgin’s Uniform Zoning Ordinance clearly states it is illegal for anyone to offer or contract to sell a subdivided lot until the subdivision plat has been approved and recorded with the County (Virgin Subdivision Ordinance, Chapter 1, section 2).  No conflicts were declared at the July 18th meeting, though after determining that a quorum would not approve it, the mayor made an unsuccessful motion to table the subdivision.  Thus, no final action was taken the first time it was addressed by the Town Council.
As you all may know, Liahona returned to the Town Council on September 19th.  This time, the mayor made an announcement before discussion began.  He stated that he may have a conflict of interest but was not sure what that was… that he was a former owner of the property where the facility was proposed.  In our view, the statement was essentially a denial of financial interest rather than a declaration of conflict.  He asked Chris Edwards to explain the situation.  Edwards (now representing Liahona Academy rather than the Town) told the Council “…for the Mayor’s sake…” that Jerry Woods’ purchase of the land from Jay Lee and his brother-in-law was a commercially feasible transaction, and that in no way did the ability for the mayor and partner to get paid for their land depend on the success of the Liahona applications (from notes as well as tape recording of meeting).  Having visited the County Recorder a couple of days earlier to research ownership of the land, we were rather surprised to hear these statements, as we had been told more than once that, in spite of the deed recently filed by Chris Edwards (which contained various errors and ended up in the “bad deed” file), the land was still legally owned by the mayor and his relative.  
Notwithstanding what we consider to be the questionable status of the subdivision request, the Town Council approved the application on a waiver (which allows the applicant for a small subdivision to forego certain platting requirements and may be granted, as this one was, with the advice of the Town Attorney, i.e. Russ Gallian).
Many times over the following months we have visited the County Recorder’s office to check on any transfers of ownership, either of the 80 acre parcel from the mayor to Walking X, or of the 2.5 acre parcel from Walking X to Liahona Academy.  As recently as March 21st	 the status remains the same as it was last June.  A request made to the county treasurer’s office that same day yielded confirmation that property tax on the 80-acre parcel in question had been paid by the owner, Mr. Lee.
Now we will return to the meeting on March 20th, where Councilman Cornelius is pointing out the irregularities in the subdivision granted Jerry Woods via Chris Edwards for Liahona Academy.  Much of the audience was astonished (even Russ Gallian was apparently taken aback) to gather from the discussion that the deed produced to prove the transfer of the land from the mayor and his brother-in-law to Walking X was not for an 80 acre parcel, but instead for only 2.5 acres.  This suggests that the subdivider in the transaction was not Jerry Wood, but that a parcel was divided off without any formal subdivision application or approval by the mayor and his partner before the transfer of land to Jerry Wood was attempted.  Apparently, not only had an illegal offer been made to sell the land, but no attempt to properly subdivide was even made before the trust deed (which names Rocking JBL Ranches as default beneficiary) was signed.  Thus, it seems to us fully within the power of the municipality to rescind the CUP (see UCA 10-3-1312) or to withhold any building permit on this parcel (see UCA 10-9-1002).   Mayor Jay Lee made a motion to stand by the Council’s original approval of the permits, but no council-member seconded the motion and it died.  There was ultimately no action taken by the Council on the matter.
Below you will find some relevant excerpts from Utah Code (available in its entirety for review at www.livepublish.le.state.ut.us).
10-3-1308. Investment creating conflict of interest with duties -- Disclosure.   Any personal interest or investment by a municipal employee or by any elected or appointed official of a municipality which creates a conflict between the employee's or official's personal interests and his public duties shall be disclosed in open meeting to the members of the body in the manner required by Section 10-3-1306 
[referenced section of 10-3-1306 reads, “(2) The disclosure shall be made in a sworn statement filed with the mayor. The mayor shall report the substance of all such disclosure statements to the members of the governing body, or may provide to the members of the governing body copies of the disclosure statement within 30 days after the statement is received by him] 
10-3-1312. Violation of disclosure requirements -- Penalties -- Rescission of prohibited transaction.
If any transaction is entered into in connection with a violation of Section 10-3-1305 , 10-3-1306 , 10-3-1307, or 10-3-1308, the municipality:
(1) shall dismiss or remove the appointed or elected officer or municipal employee who knowingly and intentionally violates this part from employment or office; and
(2) may rescind or void any contract or subcontract entered into pursuant to that transaction without returning any part of the consideration received by the municipality.
10-9-811 Prohibited acts.  (1) (a) An owner of any land located in a subdivision, as defined in this chapter, who transfers or sells any land in that subdivision before a plat of the subdivision has been approved and recorded violates this part for each lot or parcel transferred or sold.
(2) (a) A municipality may bring an action against an owner to require the property to conform to the provisions of this part or an ordinance enacted under the authority of this part.

(b) An action under this Subsection (2) may include an injunction, abatement, merger of title, or any other appropriate action or proceeding to prevent, enjoin, or abate the violation.
	(c) A municipality need only establish the violation to obtain the injunction.
10-9-1002 Enforcement. (1) (a) A municipality or any owner of real estate within the municipality in which violations of this chapter or ordinances enacted under the authority of this chapter occur or are about to occur may, in addition to other remedies provided by law, institute:
(i) injunctions, mandamus, abatement, or any other appropriate actions; or
(ii) proceedings to prevent, enjoin, abate, or remove the unlawful building, use, or act.
(b) A municipality need only establish the violation to obtain the injunction.
(2) (a) The municipality may enforce the ordinance by withholding building permits.

Upcoming Meetings
Planning & Zoning; May 7th at 7:00 pm (6:30 pm work meeting),
Town Council; April 17th at 7:00 pm (6:30 pm work meeting)