In March, the Grand County Commission voted unanimously to rally behind an effort by Grand County Attorney Christina Sloan and former Grand County Planning Director Mila Dunbar-Irwin.
The county wanted to make it official that only locals are allowed to purchase HDHO units — an interpretation at odds with the intent of the HDHO’s creators and the developers who intended to use it to build housing in Grand County.
Grand County Attorney Christina Sloan characterizes the rules and regulations approved by the Grand County Commission on March 4 as an administrative rather than legislative change. The difference, as I will explain, is important to the case.
“this was administrative” — Sloan
If the county characterized the March rules as a legislative change, it would render them inapplicable to HDHO developers. All those developers had their current plans approved by the county last year or in 2019.
The legal principal here is about vested rights. Developers also argue contract violation.
Regardless, the county would find itself in a deeper legal mire if the March rules were ruled to be a legislative change.
On the other hand, if the county can convince a judge that the March rules are consistent with the HDHO, that would implicitly put developers in the wrong. It would imply they didn’t read the rules closely enough.
Elected officials, who believe that the new rules are consistent with the HDHO, for months had said that they simply did not understand how the developers came to a different conclusion than they did. Developers said the same.
Now that the cases are entering pseudo-judicial proceedings, the tones have changed.
In their appeals, developers have opted not to address the matter of why all of this is happening or what is in elected officials’ hearts. If you believe you are arguing about how to interpret a law, motivations are not as relevant as the content of the law itself.
On the other side, Sloan has opted to impugn developers’ motives — part of a larger strategy, her filings suggest, to dictate the narrative elements of this recent HDHO saga on top of arguing the legal conclusions.
The developers have not yet responded to these denigrations. If they do, it will be during the appeal hearings happening this week.
The first is from Sandstone Cottages. This appears to be the weakest case of the three.
Sandstone Cottages, in addition to arguing that they have a right to sell their HDHO units to anybody (as long as the occupant is a local), also argued that they have two more approved units than the county says they have.
According to Sloan, these two additional units never got necessary approval. She noted the lack of a signature from the county on the exhibit they submitted as support for their claim about the two additional units.
As for the key matter, though, the Sandstone Cottages developers and their attorneys made arguments very similar to their two peers.
The Sandstone Cottages side argues that county’s March HDHO rules are inconsistent with the original HDHO ordinance passed in 2019, under which they had their development (at least 40 units of it) approved.
They argue that, if the rules are inconsistent with the ordinance, the county has violated the developers’ rights and the contract the two entities entered when the county approved their development in 2019.
On the other side, Sloan argues that the ordinance and rules are consistent. Specifically, she cites the enforcement clause from the HDHO as the backing her claim.
The clause prohibits “sale or rental” of HDHO units to households that do not qualify. Legally, that means selling to an unqualified household is illegal, and renting to an unqualified household is also illegal.
Under Sloan’s interpretation, this means that only a qualified household can purchase an HDHO unit. That would exclude outside investors, bringing money into Moab by purchasing units that they go around and rent to locals (it would have to be locals, not visitors).
The developers argue, among other things, that this interpretation of the enforcement clause is inconsistent with the rest of the HDHO ordinance. The ordinance states in clear terms that its purpose is to “something”.
There is also a passage in the HDHO that one developer says explicitly allows the sale of units to outside investors (as long as they then rent the units out to locals).
Sloan explains away this language about promoting both rentals and ownership by saying that the rentals are meant to be owned by locals — local companies, included.
The irony here is that this interpretation would shield local landlords from outside competition.
In the alternative world, outside landlords would look to undercut or outperform local landlords by coming in and reducing prices to get their units filled or offering better service than local landlords.
Sloan says that’s not what the county wants.