Ronald Mortensen, Ph.D.,

Co-Founder, CitizensForTaxFairness.org

November 22, 2019

Key Points

• On November 12, 2019, Mayor Randy Lewis, Councilwoman Kendalyn Harris and Councilwoman Kate Bradshaw took a major step towards socializing private property rights when they voted to approve a Trails Master Plan.

• City officials drew the Bountiful Police Chief and the South Davis Metro Fire Agency Chief into the fray in an attempt to refute points brought up in an earlier public hearing by private property owners.

• Property owners strongly opposed including the proposed Creekside Trail in the Plan since it would require them to give up their property.

• Responding to property owners’ opposition to the taking of their private property, Bountiful City Manager, Gary Hill told them: “That’s what cities do.”

• The City Council divided on protecting property rights—Harris and Bradshaw against; Simonsen and, to a lesser extent, Higginson for protecting property rights.

• Mayor Randy Lewis cast the deciding vote to adopt the Trails Master Plan that includes the eventual taking of private property.

• Elected officials and city staff support legal plunder. Democratic socialism appears to be alive and well in Bountiful.

On November 12, 2019, Bountiful, Utah Mayor Randy Lewis, Councilwoman Kendalyn Harris and Councilwoman Kate Bradshaw took a major step towards socializing private property rights when they voted to approve a Trails Master Plan. The Plan contains a proposed “Creekside” trail which runs along a creek and wooded area. This property currently belongs to many individual homeowners some of whom have been there for generations. The only way the proposed trail can be built is by taking the property of these homeowners and depriving them of the right to enjoy their property.

Mayor Lewis, Councilwomen Harris and Bradshaw along with City Manager Gary Hill and the city’s Planning Director put all property owners in Bountiful on notice that they must to be ready to give up their property rights when the city determines that it needs their property in order to benefit others.

Bountiful Police and Metro Fire Chiefs drawn into the fray

Bountiful officials drew the Bountiful Police Chief and the South Davis Metro Fire Agency Chief into the fray in an attempt to refute points brought up in an earlier public hearing by private property owners. These civil servants had no choice but to do as they were told since the Police Chief is a Bountiful city employee and the city has a seat on the board of the Metro Fire Agency. The Police Chief was forced to rely on a twenty year old study on crime statistics for trails along former railroad right of ways even though it was outdated and was not at all applicable to the proposed Creekside trail. The Fire Chief said that he was neutral but that if the trail were wide enough and easily accessible to fire fighters it could be of help in case of a fire.

Property owners strongly oppose placing a trail across their property

During two public hearings, property owners strongly opposed including the proposed Creekside Trail in the Plan since it would require them to give up their property. They referenced the Declaration of Independence, Constitution, Frederic Bastiat and Ezra Taft Benson in defense of their property rights. They provided emotional testimony about what their property means to them and how it has helped them get through difficult times. They informed city officials that their property would be put in perpetual trusts in order to protect it and to ensure that a trail never goes through it. They proudly reminded the Mayor and Council that family members had served in the military in order to protect every American’s right to property. They proposed that a bike lane be established on 1800 South which would alleviate the need for the Creekside trail and the taking of private property.

City Manager asserts city’s right to take private property

Responding to property owners’ opposition to the taking of their private property for a trail, Bountiful City Manager, Gary Hill told them “that’s what cities do.” He said that city owned sidewalks are essentially trails on private property and that cities are always planning for roads and establishing easements for sewer lines so property owners shouldn’t be alarmed. He concluded by asserting that the city has to plan for future generations not just for current property owners. (Note: An unofficial transcript of Hill’s comments can be found at the end of this piece. The City recorder can provide copies of the audio recording.)

What was clear from Hill’s comments was that he was extending the taking of private property from things that are used by and benefit the entire citizenry to a limited use trail. For example, unlike a trail, an easement for a sewer line that benefits everyone has a limited impact on the property owners who continue to use their property and the easement is only accessible to authorized personnel. A city sidewalk parallels a public street. However, the proposed trail is much more invasive than a sewer line easement or a sidewalk since (1) it requires government to take the property from the owners in order to benefit those who could not legally confiscate or access the property themselves and (2) gives unfettered access to and through the back yards of home owners to anyone from anywhere at any time for their private purposes.

Council divided on property rights

Councilwoman Kendalyn Harris made the motion to adopt the Master Trails Plan as drafted, including the Creekside trail that requires taking private property. Harris said she understands why some property owners say they will never give up their property rights but that it is necessary to keep the Creekside trail in the Plan even though it could require these same property owners to give up some of the most desirable areas of their property—the creek and wooded areas immediately adjacent to it. She argued that if the Creekside trail were removed from the Plan that it would take away government’s options. In addition, keeping the proposed trail does not [immediately] take away property but it will start the conversation [about taking property] that could eventually result in the Creekside trail being built.

Councilwoman Kate Bradshaw, who also supported and voted for the Plan, argued that a trails plan should have been developed years ago in order to keep the land open, thereby implying that the property owners should never have been allowed to buy the property that has been in some families for generations. However, since that wasn’t done, the city needs to move now. Once the Plan is adopted with the Creekside trail in it, input from property owners will be required before their property is taken. Adopting the plan with the trail shown running across private property does not preclude being responsive to property owners’ concerns according to Bradshaw.

In an earlier e-mail exchange, Bradshaw dismissed concerns that property owners who refused to give up their property for the Creekside trail would be subject to doxxing that could result in vandalism, increased trespassing and harassment. She also denied that inclusion of the Creekside trail in the Plan would divide people along age and property ownership lines although during an earlier hearing the age of the property owners had been highlighted by a member of the Trails Committee. In fact, should these property owners be victimized in the future that could well be considered a “hate crime” under Utah statute because of references made to their age. Finally, Councilwoman Bradshaw downplayed the seriousness of an attempt being made to change a state law that currently denies governmental entities the ability to use eminent domain to take private property for trails. Note: In a separate e-mail, Councilman Higginson also rejected any doxxing concerns calling them “poppycock.”

Councilman Richard Higginson thanked city staff and the trails committee for the Plan. He said that this was not being done to steal property but recognized that government could hurt private property owners. He acknowledged that the proposed trail would cross the best protected property in Bountiful. He suggested removing the Creekside trail for now and working with the property owners in the future. Thirty or forty years from now, he said, it will be nice to have a trail under the trees. He voted against the motion.

Councilman Chris Simonsen stated that people’s property rights had to be respected and that the Creekside trail had to be removed from the Trails Master Plan—leaving the trail on the Plan would cause too much division and heartache. He voted against the motion.

It should be noted that neither Councilman Higginson nor Simonsen made a substitute motion to remove the Creekside trail from the Plan which they could easily have done to further reinforce their positions. In addition, after property owners had left following the adoption of the Trails Master Plan and just before the Council adjourned, Higginson pointed out that the Council had not adopted the resolution approving the Trails Master Plan with the Creekside trail. The Council quickly voted to adopt it.

Mayor casts deciding vote against property rights

Due to the absence of City Councilman John Marc Knight who was ill, Mayor Randy Lewis cast the deciding vote to adopt the Trails Master Plan that includes the eventual taking of private property by government. According to Lewis, young people want trails and the Master Plan is the ideal. He explained that he had been educated about active transportation and disruptive technology and noted that everything is changeable. He argued that the future will be different and that we need the vision for that. According to Lewis, Bountiful is going to have active transportation including running, hiking and biking but that this will not be done unless individuals who are getting a little older see it as a benefit for the future. Lewis said that we don’t buy anything unless we see the benefit. I’m telling you, “I’m buying it not to hurt you but for our future.”

Lewis had signaled his vote for the trail earlier when he told KSL-TV that “When you are going to do an urban trail like we’re doing here in Bountiful, it’s going to affect some lives” though he admitted, “If I lived on this ravine, with these homes, I don’t know that I would feel a lot differently than they’re feeling.”

Lewis and Harris have history of supporting highly unpopular proposals

Several years ago, Lewis and Harris both supported the construction of an ostentatious, terribly expensive new city hall despite widespread citizen opposition. Growing citizen outrage eventually forced the Mayor, Harris and other city council members to cancel the new city hall.

Elected officials and city staff support legal plunder

The debate on the Trails Master Plan clearly shows that the Mayor and two Bountiful City Councilwomen will not protect existing property rights. It is also clear that the City Manager and the City Planning Director both believe that the city has the right to take private property for whatever purpose they deem to be for the benefit of the city or for certain privileged individuals or groups. When government does something that the average citizen cannot legally do such as taking property from one group of citizens in order to benefit another group of citizens that is legal plunder according to Bastiat.

But how is this legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime. 

Then abolish this law without delay, for it is not only an evil itself, but also it is a fertile source for further evils because it invites reprisals. If such a law — which may be an isolated case — is not abolished immediately, it will spread, multiply, and develop into a system….All these plans as a whole — with their common aim of legal plunder — constitute socialism

It will be interesting to see if the disdain elected officials and their staff have shown for private property will result in a backlash or if they will be able to get away with it because they are only attacking the property rights of a small group of residents. In the meantime, democratic socialism appears to be alive and well in Bountiful.

Unofficial Transcript

Bountiful City Manager Comments

11-12-2019

From Partial Recording Provided by the City of Bountiful, 1:08:40 to 1:11:05.  Note: recording is difficult to hear and in some cases words cannot be made out.

Gary Hill:  I only heard a couple of questions that I thought would be worth addressing.  One was about trails on private property and that is not constitutional or appropriate but I thought it was worth pointing out that is what cities do….Almost everyone has a trail on their private property already and that is a sidewalk and that’s on your property….My point is simply this, cities always plan for 30, 40 50 years in the future.  Those plans don’t always come to fruition but sewer easements, roads and streets and even trail easements all those things start with plans and they all cross property at some point or other so I don’t think anyone should be alarmed with that because before of those things actually happen the detailed engineering discussion has to take place as do discussions on parking, topography, costs all those things have to take place.

The Trails Master Plan is very similar to this, it is simply a policy process question, is there interest by the Council in continuing those discussions [difficult to understand previous] but it is a falsehood to say there are no public plans on private property.

The other question raised was why is the city still considering when so many are opposed to it?  The short answer is that cities have to plan for future generations not just current property owners. Those of you on the City Council have been extremely considerate of property owners needs but if the City is not planning for the properties, … the residents after that then the City Council is not doing its job by exploring all options. That doesn’t mean that the City Council isn’t ….and if City Council doesn’t do that it is not doing their job.