By Duane Hilton
Owners of a piece of unincorporated Utah County land that is surrounded by Provo City will have their case heard before the Utah Supreme Court today in an attempt to keep their land from turning into a road.
In May 2004, Utah County tried to condemn the property to build a road that would connect Canyon Road and University Avenue just south of The Shops at Riverwoods.
Provo City has already started constructing the road to the edge of the unincorporated property and can legally go no farther.
Provo tried to condemn the property in 2000, but the landowners went to court to stop the construction of the road. The case went all the way to the Utah Supreme Court. Because the property is not within Provo City limits, Provo was not able to condemn it.
However, Provo entered into an interlocal cooperation agreement with Utah County, which would allow the County to condemn the land and have Provo pay for the road.
The landowners” case is now at the Utah Supreme Court again.
The landowners” attorney argued in a brief filed with the Utah Supreme Court that Provo and Utah County made improper use of the interlocal cooperation agreement because one municipality may not agree to do something with another that it could not do by itself.
According to the brief, Provo only entered into the act so it could use the County”s condemning powers.
“Provo City is to bear all the costs of negotiation, legal fees, acquisition of the property, construction, repair and maintenance relating to the road,” according to the landowners” brief.
Interlocal cooperation agreements are meant to allow municipalities to share the costs in a mutually beneficial endeavor, according to the brief.
According to the County”s brief, the core question of the case is if the County has the power to condemn the property, which it says it has.
“That Provo City will bear the costs related to establishing the Connector Road does not in any way diminish the County”s condemnation authority,” the County”s brief reads.
Utah County can only be deprived of its condemnation power if it acts in bad faith, according to the brief, and there is no evidence of any bad faith.
Provo has purposes for condemning the land: it wants to build the road to alleviate increasing traffic congestion, and the property has been part of Provo”s transportation plans for about thirty years, according to the County”s brief.
According to computer models, the road would alleviate traffic congestion at the 3700 North, University Avenue intersection and the Canyon Road, University Avenue intersection near the mouth of Provo Canyon, said Dave Graves, assistant city engineer.
In 2004, Provo argued it could condemn the property using article 11 of the Utah Constitution and the Transportation Corridor Preservation Act. The Utah Supreme Court disagreed.
Under article 11 of the Utah Constitution, chartered cities have some power to condemn land outside their boundaries. But Provo is not a chartered city, and the powers given to chartered cities do not apply, according to the decision.
The Transportation Corridor Preservation Act could be interpreted to mean a city can condemn land outside its limits, Provo argued.
The act also says a city must get permission from the municipality the property is in before condemning it.
The unincorporated land is in Utah County, but there was no record of Utah County consenting to its condemnation. So, Provo could not condemn it, according to the 2004 decision.