Posted by: Patricia Salkin | October 29, 2008

Utah Supreme Court Holds Zoning Ordinance May Be Modified by Initiative Process

Relying on the State Constitution, the Utah Supreme Court found unconstitutional the state statute prohibiting voters from petitioning for an initiative about a land use ordinance or a change in a land use ordinance. (Election Code 20A-7-401). The Court reviewed the history of Articles I and VI of the State Constitutional, finding that “the right to enact laws or modify them by initiative, or to reject them by referendum is an important one.”  The Court concluded that while “the Constitution gives to the legislature the obligation to establish the process by which an initiative is to be presented to the voters…” a “direct prohibition on the subject of an initiative, brought otherwise within the conditions, manner, and time restrictions imposed by law is beyond the power of the legislature to act.”

                     

This holding paves the way for a November ballot initiative in Sevier County that  seeks to amend the County zoning ordinance by proposing an additional element to the criteria specified for approval of all conditional use permits requested for an electricity generating plant whose primary source is coal, and by requiring revocation of any already issued conditional use permits granted for such use  if issued after the application for the initiative petition was filed and before the vote required to effect the changes.

 

 

Sevier Power Company, LLC v. Board of Sevier County Commissioners, 2008 WL 4601464 (Utah 10/17/2008).

 

The opinion can be accessed at: http://www.utcourts.gov/opinions/supopin/SevierPower101708.pdf

UPDATE 10/23/2009 – The initiative petition to amend the Sevier County code was on the ballot last year (November 2008) and passed.  The amendment requires
(i) voter approval of any conditional use permit for a coal-fired power plant and (ii) revocation of such a conditional use permit issued after the initiative petition was filed.  Despite passage of the initiative, it apparently will not apply to the Sevier Power Company’s proposed power plant because its land use application was finally approved before the initiative process began.  See
http://propertyrights.utah.gov/opinions/65_AO_Abstract.pdf

Special thanks to Neil Lindberg, Chair, Utah APA Legal Committee, for this update.


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