Editor’s Note: Special thanks to Neil Lindberg Municipal Council Attorney for the City of Provo, Utah for providing this update.
Last year, in Carter v. Lehi City, 2012 UT 2, the Utah Supreme Court created a new paradigm for deciding when government action is legislative or administrative. But Carter specifically avoided deciding whether a site-specific rezoning is a legislative or administrative action. On December 10, 2013, the Utah Supreme Court decided Krejci v. City of Saratoga Springs, 2013 UT 74, which answered this important constitutional question: a site specific rezoning is a legislative action and is thus subject to referendum.
The Saratoga Springs city council adopted an ordinance rezoning twelve acres of property, owned by Capital Assets Financial Services, for development of seventy-seven “mansion style town homes.” A group of citizens opposed to the project circulated a petition to reverse the ordinance. After the group gathered the required number of signatures for a referendum, the city agreed to place it on the ballot.
Capital Assets filed a complaint in district court arguing the rezoning was an administrative act not subject to referendum. The complaint did not name the citizens’ group as a party and the group was not served with process. Although the citizens’ group was aware of the litigation, it did not intervene in the court proceedings. The district court agreed the rezoning was an administrative act and enjoined the city from placing the referendum on the ballot. In response, the citizens’ group applied to the Utah Supreme Court for an extraordinary writ, as permitted by state law when a local clerk refuses to file a referendum petition. After a challenge by Capital Assets, the Supreme Court found the citizens’ group properly applied for the writ and ordered that the referendum be placed on the ballot.
The Utah Code authorizes voters to petition for a referendum on any “local law.” The code defines a local law as “an ordinance, resolution, master plan, and any comprehensive zoning regulation adopted by ordinance or resolution.” The code specifically does not include an “individual property zoning decision” in the definition of a local law. Capital Assets thus argued that the rezoning of its property was statutorily ineligible for a referendum. The court disagreed. Since the Utah Constitution protects the people’s right of referendum, a statute adopted by the Legislature restricting an “individual property zoning decision” from a referendum cannot override the people’s constitutional prerogative.
Carter explained that “legislative power gives rise to a new law, while executive [administrative] power implements a law already in existence. . . . Legislative power generally (a) involves the promulgation of laws of general applicability; and (b) is based on the weighing of broad, competing policy considerations.” The court held that rezoning the Capital Assets property was legislative because it bore these hallmarks of legislative action. By contrast, conditional use permits and variances involve determinations of whether a particular land use application conforms to statutorily adopted standards. As such, they are administrative actions and are not subject to referendum. The court overruled contrary decisions in Bird v. Sorenson, 394 P.2d 808 (Utah 1964) and Wilson v. Manning, 657 P.2d 251 (Utah 1982), and ordered the Saratoga Springs city recorder to place the referendum on the November 2013 ballot.
Krejci v City of Saratoga Springs, 2013 UT 74 (12/10/2013).
You can read the opinion here.
The referendum passed and will likely subject the city to a vested rights claim as noted here.