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Mayflower Developer Secretly Sues - KPCW Seeks To Unseal Court Documents

Extell Development Company

The owner of the massive Mayflower Mountain development is secretly suing two local residents and their company as the master plan for this new resort development moves through the final planning approvals. 

The lawsuit was filed last October by Extell Development Company and BLX Land corporation against a former Extell employee Van Hemeyer, his business partner Diana Swaner, and their company Blue Ledge Resort.

As to what the dispute it about – well - no one knows – except those involved. At the time the lawsuit was filed October 12th last year, an order was granted by 4th District Judge Jennifer Brown to classify the complaint - and all of the court documents - as protected.

Extell’s attorney John Lund  told KPCW he couldn’t say much, without spilling the beans as to why the lawsuit was filed – but  he did confirm that his client, was the one who asked that the case be sealed.

Extell Development Company purchased the Mayflower property in November 2017. The 2,300 acres – located just west of the Mayflower exit off of U.S. 40 has been master-planned for a ski resort and alpine village and envisioned as an eastern portal of Deer Valley Resort.

Extell has been working to develop the Mayflower base area with some 3.2 million square feet of development, which will include a 300-room military recreation facility along with three other luxury hotels, 250,000 square feet of commercial and retail space and a 68,000 square foot recreation center. In addition, five new ski lifts are planned to access about 1,000 acres of ski terrain.

Hemeyer and his business partner Diana Swaner had sold their 40 acre Blue Ledge parcel – which borders the Mayflower property - to Extell Development Company – the largest real estate firm in New York. Hemeyer went on to serve as Vice President of Acquisition for Extell but  he is no longer employed there. Both he and Swaner told KPCW they couldn’t comment on the case.

On his firm’s website page, John Lund, who represents Extell, is described as the go-to attorney for clients with high-stakes cases. Retained by the former American Skiing Company – the former operator of the Canyons resort before it was joined with Park City, Lund successfully obtained one of the largest jury verdicts ever awarded in Utah – for $54 million.

Then, in 2104, Lund represented Jack Bistricer – who had purchased the assets of United Park City Mines Company, including the thousands of acres on which Park City Mountain Resort sits. Lund successfully terminated the lease that Powdr Corp and John Cuming had with United Park. That opened the door to Vail Resorts assuming the entire leased property from the Canyons to the top of Jupiter bowl.

The defendants Van Hemeyer and Diana Swaner and their business, Blue Ledge, have since filed a counterclaim against Extell as well as a Third Party complaint. Depositions for the two defendants have been scheduled.

First Amendment attorney Jeff Hunt told KPCW, in most instances, the public has a right to access court records and sealing them is only done in rare circumstances. It’s very unusual he said for all of a case’s court filings to be off limits to the public.

“While parties can file certain things under seal, there has to be very good reasons for that. When you take your case to the public courts, you should expect some public scrutiny of the process and the public enjoys the 1st amendment right of access to court filings and court proceedings. So, for that to happen - for the filings to be sealed - the judge has to find that there's a very compelling reason for keeping those records under seal and that there is no less restrictive way to protect that interest than closing them off and the public and that's very rarely met that standard.”

Hunt says it’s up to the judge to make the decision to sign off on a motion to seal a case. It’s possible that the judge may not have looked at this case too closely, since both parties had agreed to seal the case.

“ Oftentimes what parties will do is just stipulate to closure if neither party is very interested in having public scrutiny over the case, they'll just stipulate to it and agree and put that in front of a judge and then  the judge will sign an  order. But if anybody were to challenge - file a motion to challenge - the blanket ceiling of the entire case, that would be what the judge would have to do is look at whether the criteria for closure have been met and they are very stringent criteria. It would be very unlikely they would prevent public scrutiny of every single document that's been filed in the case.”

KPCW Radio has sent a letter to 4th District Judge Jennifer Brown asking that she reconsider her decision to seal the case.

“The judge may not even know that everything has been filed under seal and then the judge could take a look at that and make it you know determination about whether the constitutional standard has been met for closure or the media sometimes will file a motion with the judge to intervene in the case if it's sufficiently newsworthy to request that the judge unseal all of the filings in the case because the standard for closure has not been met.”

Hunt called it “bedrock principle” that court records are presumptively open to the public and you have to meet a very high standard to close them. Given that Mayflower is the biggest development in Wasatch County – right in Park City’s back yard,  Hunt agrees that the public does have an interest in what’s going on with this development

“I totally agree. The public definitely has an interest in and there's also institutional interest and just having you know the sunshine on the entire proceeding, it keeps people accountable and it just promotes transparency and accountability when people know what is going on and they're publicly responsible for their decisions.”

KPCW has not heard back from Judge Brown – at this point -  on its request to unseal the case.

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