Posted by: Patricia Salkin | December 5, 2018

UT Supreme Court Holds City Resolution was Approved Pursuant to City’s Administrative Powers and Therefore Not Referable to a Public Referendum

This post was authored by Matthew Loeser, Esq,

Following the closure of the Cottonwood Mall, the City of Holladay desired to redevelop the land on which the mall once stood. In 2018, the City approved two resolutions for this purpose, Resolution 2018-16 and Resolution 2018-17, which would enable Ivory Development, LLC to develop that land. In response, a group of citizens from Holladay petitioned to subject the Resolutions to a public vote by referendum. The district court held that Resolution 2018-16 was approved pursuant to the City’s legislative power and was therefore referable. The district court further held that Resolution 2018-17 was approved pursuant to the City’s administrative power and was therefore not referable.

The court first noted that any approved site development master plan (“SDMP”) controlled the development of the relevant R/M-U zone without regard to the identity of the developer. The SDMP applied to all parties, present and future, that met its terms by executing a corresponding Agreement for the Development of Land (“ADL”) with the City. As such, Resolution 2018-16 (“2018 SDMP”) was ”generally applicable” for all cases coming within its terms. Additionally, it was evident from the face of Resolution 2018-16 that the City considered broad, competing policy considerations in approving the 2018 SDMP. Specifically, the City’s findings enumerated as two through six clearly contemplated how approval of the 2018 SDMP would affect the City as a whole. The record reflected that the City considered everything from traffic impact in the area surrounding the Site to the City’s economic stability. Additionally, rather than giving the City specific criteria to evaluate in approving an SDMP, the R/M-U zoning ordinance conditioned approval on the City’s determination that the SDMP complied with the “amorphous vision and purpose sections of the ordinance”, which left the determination of whether an SDMP anticipated development of a vibrant community or allowed flexibility and creative expression to the City. Accordingly, the court held the R/M-U zoning ordinance expressly invited the weighing of broad and competing policy considerations that the City undertook in approving Resolution 2018-16, and was therefore legislative in nature and referable.

In contrast to the 2018 SDMP, which governed the development of the Site without regard to the identity of the developer, the court found the Amended ADL (Resolution 2018-17) was simply a contract between four parties setting forth the obligations of those parties. Petitioners argued that, in Suarez v. Grand County, 2012 UT 72, 296 P.3d 688, the court found a development agreement between Grand County and a developer to be legislative. The court found, however, that the court’s holding in Suarez applied only to Ordinance 454 as a whole; in that case, the amended development agreement also included the Cloudrock Code, which included the means by which administrative deviations from the ordinance could be granted. The Cloudrock Code was adopted contemporaneously with the amended development agreement as an exhibit thereto, unlike the 2018 SDMP, which was a document that existed separately from the Amended ADL. Thus, the court declined to find the Amended ADL was generally applicable simply on the basis that it purported to run with the land.

The court next found that instead of weighing broad, competing policy considerations in approving the Amended ADL, the City was granting specific rights pursuant to an approved SDMP. Furthermore, while the City may have weighed important considerations in negotiating the Amended ADL, these considerations were nonetheless unique to the specific facts of this individual case. The court held that this type of action was “fundamentally administrative” and did not implicate the weighing of broad, competing policy considerations. Accordingly, the court affirmed the district court’s holding that the City was exercising its administrative powers when it approved Resolution 2018-17, and the Resolution was not referable.

Baker v Carlson, et. al., 2018 WL 6239919 (UT 11/28/2018)

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