Friday, July 01, 2005

Utah Supreme Court Rules on Sandy City Referendum Petition

Just got word that the Utah Supreme Court issued its ruling today on the petition by the Save Our Communities (SOC) group against Sandy City, to allow a referendum petition to go forward in the gravel pit development case. The court ruled in favor of SOC and ordered Sandy City to proceed with the petition.

I've tried to get ahold of a couple of land use attorneys to get their take on this case, but I think everyone has already headed out for the long July 4th weekend, so I'm on my own in drawing out some conclusions from this ruling. And I'm in somewhat of a rush to do so as well, as I am leaving tomorrow morning for a week-long vacation to northern Montana and then on to Spokane, where my oldest daughter (and grandkid!) are living. I won't be back until after July 11, and by then there will be lots of stuff out about this case, so here goes my best shot.

The court did some interesting things, which I think open the door for more referenda petitions on zoning and land use issues. Though this case has some peculiar twists that make it a little hard to figure how they will apply in more general instances.

In this case, the Sandy City Council amended its permitted uses in the SD-X zone (special district mixed use) to allow for hardware/building/home improvement stores and for drug/variety/garden centers. This amendment was to allow the Boyer Company to build, among other things, a Lowe's and Wal-Mart in an old gravel pit. The gravel pit property is the only property in Sandy with this zoning.

Utah State Code allows for local laws, including comprehensive land use ordinances and general plans, to be subject to referenda. It provides a specific exclusion, however, for "individual property zoning decisions," making these not subject to referenda. Most of us have read this to mean rezone actions.

This is a tricky area of the law, because other court rulings have made a clear distinction between legislative actions, which are clearly subject to the referendum process, and administrative actions, which are not. When a city adopts or amends the zoning ordinance text, for example, most agree that this is a legislative action. But rezones also require a vote of the governing body, which seems to indicate they are also legislative, but most have thought that the exemption from "individual property zoning decisions" carves them out of referable actions.

In this case, however, Sandy City argued that the change in the text of the SD-X zone was an individual property zoning decision because there was only one property in Sandy that had this zone designation. Hence, it was not subject to referendum.

The court ruling does a lot of discussing about what are administrative and what are legislative actions, but in the end, the court made a distinction on the basis of the action being taken by a city council under the council-mayor form of government. The court said, "...(we) conclude that all acts taken by a city council in a city organized pursuant to the council-mayor form of government are necessarily legislative and subject to referenda."

That statement by the court, I think, opens the door to more referenda in the future, even on rezones (because, they said, ALL actions taken by such city councils are legislative and thus subject to referenda), and confuses what happens in cities that are not council-mayor (the court talks about that in paragraph 35 of their ruling).

The state code also has a provision that supposedly raised the bar for "land use laws." For most legislative actions, a referendum petition must collect the signatures of registered voters equal to 10% of the number who voted in the last gubernatorial election. For "land use laws," the requirement is 20%.

The court said in its ruling that Sandy City's amendment of the text of the SD-X zone was not a "land use law" because the code says that is something like "a land use development code, comprehensive zoning ordinance, or an annexation ordinance." The court did not feel that a text amendment to an existing code rose to this level. "Although even a text amendment to a zoning category can be a complicated and involved process, we are persuaded that such an amendment is not of the same character as the comprehensive acts listed in the statute." Thus, a text amendment to an existing zoning ordinance, subdivision ordinance or land use ordinance does not have to meet the higher 20% signature requirement.

Katie, bar the door, there's going to be lots more of 'em now!

You can see the complete text of the Supreme Court ruling here.

You land use attorneys out there, I'd like to invite you to click on the comment line here at the bottom of this entry and clarify what you see, as I'm not going to be around for the next week to post any more clarifications. Thanks, and good luck!


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