Citizen's Awareness Now v. Marakis, 920467
| Decision Date | 21 April 1994 |
| Docket Number | No. 920467,920467 |
| Citation | 873 P.2d 1117 |
| Parties | CITIZEN'S AWARENESS NOW, a Utah not-for-profit organization, Plaintiff and Appellant, v. Jaylene MARAKIS, East Carbon City Recorder; Paul Clark, Mayor, East Carbon City; Barbara Fisher, Rakele Palmer, Todd MacFarland, Leroy Tharp, and Don McCourt of the East Carbon City Council; Don McCourt, Chairman, East Carbon Planning Commission; and the East Carbon Development Corporation, Defendants and Appellees. |
| Court | Utah Supreme Court |
Kathryn P. Collard, J. Stephen Russell, Salt Lake City, for plaintiff.
Dan C. Keller, Price, for East Carbon City officials.
Alan L. Sullivan, Salt Lake City, and Nick Sampinos, Price, for East Carbon Development Corp.
This dispute concerns approximately 2,500 acres of land in East Carbon City (the "ECDC Property"), owned by the East Carbon Development Corporation ("ECDC"), on which ECDC constructed a privately owned multi-million dollar solid-waste disposal facility. Plaintiff Citizen's Awareness Now ("CAN") sought referenda on two zoning change ordinances enacted by the East Carbon City Council (the "City Council") concerning the ECDC property. Defendant Jaylene Marakis, the East Carbon City Recorder, denied the referenda based on the City's determination that the zoning changes constituted individual property zoning decisions and were thus exempt from referenda under section 20-11-24(2)(a)(ii) of the Utah Code. On motion for summary judgment, the Seventh District Court upheld the City's denial of the requested referenda. We reverse and remand.
During the spring of 1989, ECDC and the City Council entered into negotiations regarding ECDC's desire to build a privately owned solid-waste disposal facility on land adjacent to East Carbon City. In exchange for certain economic benefits, ECDC proposed that East Carbon City annex the land and zone it for such a facility. Because East Carbon City's current development code did not permit a privately owned facility, the City Council realized that it would have to amend the city's zoning regulations if it accepted ECDC's proposal.
The City Council began the zoning modification process on July 11, 1989, when it passed resolution 15-89. This resolution stated that the primary purpose for annexing the ECDC property was "to facilitate the establishment and operation of a Solid waste disposal facility." The resolution also acknowledged that "[t]he present City Zoning Ordinance does not permit the establishment of [a privately owned solid-waste disposal facility]" and stated the City's intention to "consider an amendment to its Development Code to allow privately operated solid waste disposal facilities as a permitted use, and to place the [ECDC property] within a zone which permits the establishment of such a use."
The copy of resolution 15-89 provided to this court fails to indicate whether it was officially filed and recorded with the East Carbon City Recorder. The record reflects that the City Council conducted a public hearing regarding the resolution, but the minutes do not reveal whether the public was properly notified of this hearing, whether any interested members of the public actually attended, or whether the City Council publicly discussed the resolution's substantive content.
On July 25, 1989, the City Council passed ordinance 7-25-89, which annexed the ECDC property and zoned the land I-1 Light Industrial. While this ordinance was properly filed and recorded, the City Council seems to have made a significant labeling error. The I-1 zoning category allowed only light manufacturing and nontoxic industrial uses; it did not permit the development and operation of a privately owned solid-waste disposal facility. The correct zoning designation appears to have been I-2 General Industrial, which permitted such facilities if publicly operated.
Ordinance 7-25-89 is also problematic on other grounds. Although the ordinance annexed and zoned the ECDC property, the City Council neglected to add the land to the city's official zoning map. CAN also alleges, and the City Council does not dispute, that the East Carbon City records contained no certificate of posting for ordinance 7-25-89 until April 9, 1992. In addition, the City Council's minutes for the July 25, 1989, meeting at which they adopted ordinance 7-25-89 state only that the City was annexing the ECDC property but do not reveal the property's intended use. The minutes also refer to an agreement between ECDC and the City concerning the ECDC property, but again do not divulge the content or subject of that agreement.
Ordinance 7-25-89 does indicate that the ECDC property was annexed subject to the terms and conditions set forth in resolution 15-89. However, as explained above, the record does not reveal whether resolution 15-89 was properly filed, posted, or recorded. Thus, neither the minutes of the City Council meeting nor the face of ordinance 7-25-89 gave any indication that the ECDC property would be the site of a privately owned solid-waste disposal facility.
On the same date it passed ordinance 7-25-89, the City Council also purportedly passed ordinance 89-07-25, which adopted extensive amendments to the I-2 General Industrial zoning category. In a nutshell, ordinance 89-07-25 expanded the uses permitted under the I-2 designation to include the development and operation of a privately owned solid-waste disposal facility.
However, according to a CAN officer who regularly searched the City's ECDC property files between December 1991 and April 1992, city records do not contain a notice of agenda or public meeting regarding ordinance 89-07-25. Additionally, neither the July 11, 1989, nor the July 25, 1989, Council meeting minutes mention the ordinance. Indeed, CAN alleges, and the City Council does not dispute, that city records contained neither a certificate of posting nor a notice of ordinance adoption for ordinance 89-07-25 until April 9, 1992. CAN claims that on that date, a certificate of posting for "Ordinance 89-7-25" first appeared in the city files. As of the commencement of this litigation, however, the city files still did not contain a notice of ordinance adoption.
On August 8, 1989, ECDC and the City Council entered into an agreement permitting ECDC to develop and operate its facility. While the minutes of the July 25, 1989, City Council meeting refer to this agreement, they do not divulge its content or subject. Pursuant to this agreement and despite the improper I-1 zoning designation, on October 24, 1989, the City Council issued ECDC a one-year conditional use permit to construct, operate, and maintain a privately owned solid-waste disposal facility on the ECDC property. By the time ECDC began construction on its facility in December 1991, however, the permit had expired.
At some point during the fall of 1991, ECDC allegedly discovered that its property was zoned I-1 Light Industrial rather than I-2 General Industrial and approached the City Council about the discrepancy. On January 28, 1992, the City Council addressed ECDC's concerns by passing ordinance 92-1. Ordinance 92-1 adopted a new zoning map for the city that designated the ECDC property as I-2 General Industrial. On February 11, 1992, the City Council enacted resolution 4-92, which purported to continue and reissue ECDC's expired October 1989 conditional use permit. Resolution 4-92 also reflected ordinance 92-1's redesignation of the ECDC property from I-1 to I-2.
On February 11, CAN petitioned for a referendum on ordinance 92-1. The City Council denied the petition on the ground that ordinance 92-1 constituted an individual property zoning decision under section 20-11-24(2)(a)(ii) of the Utah Code. CAN subsequently sought a writ of mandamus from this court to secure a referendum. The City Council, in turn, passed ordinance 92-4, which again rezoned the ECDC property from I-1 to I-2. When CAN petitioned for a referendum on ordinance 92-4, the City Council again denied the petition on the ground that the ordinance constituted an individual property zoning decision. CAN then sought a second writ of mandamus to require the City to accept CAN's referendum petition on ordinance 92-4.
This court consolidated the two petitions and remanded them to the district court. Prior to trial, defendants jointly moved for summary judgment. The district court granted the motion, holding that ordinances 92-1 and 92-4 constituted "individual property zoning decisions" and therefore were not subject to referenda under section 20-11-24(2)(a)(ii). CAN brought this appeal.
We note at the outset that a challenge to a summary judgment presents for review only questions of law. See Utah R.Civ.P. 56(c); Schurtz v. BMW of N. Am., Inc., 814 P.2d 1108, 1111 (Utah 1991). We therefore accord no deference to the trial court's legal conclusions but review them for correctness. Schurtz, 814 P.2d at 1112.
The convoluted history of the ordinances upon which CAN seeks referenda raises two important questions. First, what exactly is the zoning "change" at issue in this case? Second, what is the nature and scope of an "individual property zoning decision" under section 20-11-24(2)(a)(ii)? The latter is a question of first impression.
Through a series of resolutions, ordinances, and conditional use permits, the City Council effectively rezoned the ECDC property from a classification permitting only nontoxic uses, such as light manufacturing, to one that specifically sanctioned a privately owned, possibly toxic, solid-waste disposal facility. Thus, ECDC's argument that ordinances 92-1 and 92-4 simply corrected a typographical error in ordinance 7-25-89 is somewhat misleading. The zoning change at issue in this case is not merely a clerical modification, but rather a cumulative change in (1) the content of a particular zoning category, and (2) the zoning label given to a particular piece of land.
Moreover, the record indicates that the City Council may have...
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