Whoever controls water controls development, and Salt Lake City controls the water in Little Cottonwood Canyon.
With that observation, a federal judge this week rejected the latest in a decades-long series of bids to develop privately owned land in the Albion Basin at Alta.At issue was a proposed waterline to four cabin lots. At stake were fundamental property and water rights, community self-determination, and the future of a prime watershed and one of the most scenic spots in Utah's Wasatch Mountains.
Alta Mayor William H. "Bill" Levitt said the ruling by U.S. District Court Senior Judge Bruce Jenkins may finally persuade the remaining private landowners in the basin to sell their property to public land preservation banks while the selling is good.
"A lot of people were waiting to see how this decision would go," Levitt said. "I think now, anybody with any sense of reality will say it's a good time to do the socially beneficial thing and at the same time realize a profit."
It should be clear to everyone by now that as beautiful as Albion Basin is, it is not suitable for further development, he said. In fact, Alta and other entities are hoping that the owners of cabins built before restrictions were in place will sell as well so that the basin can be restored to its natural condition, Levitt said.
The latest legal test of those restrictions came from Raymond A. Haik and Mark C. Haik, who bought four lots in the basin in 1994 with plans to build their dream cabins there.
To secure their building permits, they needed only to meet a Board of Health requirement of 400 gallons of water per cabin per day. It seemed a surmountable problem.
Alta had the capacity to add 34 residential water connections to the 190 it was already serving, and the Haiks themselves were prepared to bear the expense.
"Where the Haiks have offered to pay the costs of the extension, and Alta has sufficient water," their attorneys argued in court, "Alta's obligation to provide water to the Haiks' lots is a ministerial act about which it has no discretion."
While Alta may have the capacity and the Haiks may have the means, Salt Lake City "appears to hold all the cards where water in Little Cottonwood Canyon is concerned," said U.S. District Senior Judge Bruce S. Jenkins.
And though Salt Lake City provides Alta with up to 265,000 gallons of water per day - including an ample supply for snow-making purposes - it has elected not to make that water available for further residential development in Albion Basin.
Salt Lake City has that option under terms of a 1976 water supply agreement with Alta, which gave the larger city the right to veto the extension of water lines beyond the Alta town limits as they existed at the time.
Albion Basin property owner Marvin Melville came up against the veto following a long and ultimately futile legal battle to build on what was then unincorporated county land in the 1970s.
After Alta annexed the Albion Basin in 1981, it requested an amendment to the agreement to extend water service to the area, but Salt Lake City refused. Since building permits issued by Alta were conditioned upon approval from the Salt Lake City-County Health Department - which enforced the 400-gallon threshold - all new construction in the basin came to a stop.
In 1992, Alta developed a town plan that identified the acquisition of privately owned land in the Albion Basin as a high priority. In September the following year, it executed a memorandum of understanding with the U.S. Forest Service that further endorsed that concept.
A month later, "the Haiks stepped into this milieu," as Jenkins put it, by purchasing four building lots from Melville. They soon discovered what Melville had learned two decades earlier: no water, no building permit. So, they filed suit in federal court, saying Alta's refusal to extend the water line constituted a "taking" of their property.
Jenkins said the Haiks' contention presupposes a legal duty on the part of Alta to supply water to property owners as well as the legal and physical capacity to do so. However, the judge said Alta cannot supply water beyond what is "available" to it under the 1976 agreement.
"Where Salt Lake City withholds its consent, Alta has no legal right to extend water service to the Haiks," Jenkins said. "It is Salt Lake City, not Alta, that holds the right and exercises the power."
The Haiks also argued that Salt Lake City's refusal to supply water outside the old town limits while serving the area inside violated their equal protection rights because it "irrationally" treats them differently from other similarly situated property owners.
But Jenkins said that as the owner of the water rights, Salt Lake City has no legal duty to furnish water outside its own city limits, "be they similarly situated or not."
The judge rejected the contention that the policy amounts to a taking of property because Albion Basin landowners thought they could build on their land after the area was annexed.
He said the Haiks still have in October 1997 what they purchased from Melville in October 1994: four lots with no legal claim on the 400 gallons of water per day they need to secure a building permit.
"The Haiks cannot build on their property, not because Alta or Salt Lake City have changed the rules, but rather because the rules remain the same," Jenkins said.
Alta's mayor said Central Utah Water Project funds were specifically set aside for the purchase of private land in Albion Basin because the basin sits atop the watershed that produces what is considered the "purest and best" water in Utah.
"Anybody who's tasted the water knows it's true," Levitt said.
But many landowners have been reluctant to sell pending the outcome of the latest lawsuit and may still hold on in hopes of further litigation. Levitt said those landowners are playing "Russian roulette."
That's because the purchase offers currently on the table are based on earlier, more generous appraisals. If new appraisals are ordered, the prices are likely to be reduced, Levitt said.
"The appraiser will have to say, `This is a beautiful piece of property, but you can't do anything with it.' "