FRIENDS OF MAPLE MOUNTAIN v. MAPLETON CITY

• Decision Date: 26 February 2010
• Docket Number: No. 20080532.,20080532.
• Citation: 2010 UT 11,228 P.3d 1238
• Parties: FRIENDS OF MAPLE MOUNTAIN, INC., a Utah nonprofit corporation; and Jim F. Lundberg, an individual, Plaintiffs and Appellants, v. MAPLETON CITY, a Utah municipal corporation, Defendant and Appellee. Dr. Wendell A. Gibby and Trudy Gibby, individually, and as co-trustees of the UVRA, Inc., WAG Pension Trust and MCBRS, LLC, Intervenor-Defendants and Appellees.
• Court: Utah Supreme Court

228 P.3d 1238

2010 UT 11

FRIENDS OF MAPLE MOUNTAIN, INC., a Utah nonprofit corporation; and Jim F. Lundberg, an individual, Plaintiffs and Appellants, v. MAPLETON CITY, a Utah municipal corporation, Defendant and Appellee Dr. Wendell A. Gibby and Trudy Gibby, individually, and as co-trustees of the UVRA, Inc., WAG Pension Trust and MCBRS, LLC, Intervenor-Defendants and Appellees.

No. 20080532.

Supreme Court of Utah.

February 26, 2010.

COPYRIGHT MATERIAL OMITTED

Anthony W. Schofield, Eugene H. Bramhall, Christopher E. Bramhall, Peter C. Schofield, Orem, for plaintiffs.

Eric Todd Johnson, Daniel J. McDonald, Lyle J. Fuller, Salt Lake City, for defendant.

M. Dayle Jeffs, Randall L. Jeffs, Provo, for intervenor-defendants.

WILKINS, Justice:

INTRODUCTION

¶ 1 Appellants, Friends of Maple Mountain (Friends), bring this appeal in the course of their pursuit to hold a citizens referendum challenging a zoning ordinance enacted by Mapleton City (Mapleton), which rezoned a portion of the foothills of Maple Mountain. Friends appeal the district court's decision that, under the test outlined by this court in Citizen's Awareness Now v. Marakis, 873 P.2d 1117 (Utah 1994), the zoning ordinance was administrative in nature and therefore nonreferable. We reverse.

BACKGROUND

¶ 2 Mapleton is an incorporated city administered by a mayor and six-member city council that form a unified governing body that jointly exercises both legislative and executive powers over the municipality. Intervenors, Dr. Wendell A. Gibby and Trudy Gibby (collectively, Gibby), own 118 acres of land along the east bench of Mapleton, near the toe of Maple Mountain, which they wish to develop. For years, Mapleton and Gibby have been involved in extensive litigation over this land, including disputes over various condemnation actions, permitting and zoning concerns, and alleged civil rights violations. On May 15, 2007, Mapleton and Gibby entered into a settlement agreement that was intended to resolve all legal issues between the two parties. This agreement provided that Gibby would grant, at no cost to the city, both an easement for a recreational trail across the property and an easement for the city's water main. Most pertinent to this appeal, the agreement also outlined a proposed rezone of between sixty and eighty acres of the Gibby property, known as the "donut hole," where Gibby desires to build a residential subdivision. The donut hole is a relatively flat section of the property with some steep areas exceeding thirty percent slope interspersed throughout.

¶ 3 The entire Gibby property has historically been zoned as Critical Environment (CE-1). Mapleton created the CE-1 classification for land exceeding a thirty percent slope with the intention of protecting "those areas of the city which, as the result of the presence of steep slopes, soil characteristics, flood hazards, erosion, mudflow or earthquake potential, wildfire hazards or similar natural conditions or environmental hazards are considered environmentally sensitive and fragile." Mapleton City, Utah, Code § 18.30.010 pmbl. (2007). In this zone, lands with a thirty percent or greater slope must remain undisturbed and in their natural condition "except for the planting of additional vegetation, the addition of sprinkler irrigation systems, the establishment of required fire breaks or required access easements." Id. § 18.30.080(B). CE-1 zoning does not prevent development, but rather controls density. The CE-1 zoning ordinance calls for a minimum lot area of three acres, a minimum lot width of 250 feet, and front, side, and rear setbacks of fifty feet. Id. § 18.30.040(A), (C). Subject to approval by the city council, these dimensions may be reduced to allow for clustering of single-family homes, as long as the resulting density does not exceed the density otherwise allowed in the CE-1 zone. Id. § 18.30.080(K). Under this zoning classification, Gibby would have been able to develop a subdivision containing between twenty and twenty-three homes in the donut hole area.

¶ 4 As provided for in the settlement agreement between Gibby and Mapleton, on August 21, 2007, the Mapleton City Council enacted a new, cite-specific zoning designation entitled Planned Development-2 (PD-2), which would allow for denser development of the Gibby property. The PD-2 ordinance maintained protections for slopes exceeding a thirty percent grade, but provided for the issuance of conditional use permits that would allow for the construction of "accessory buildings such as barns, garages, carports, greenhouses, gardening sheds, recreation rooms, and similar structures" "in areas having a slope of greater than 30%." Id. § 18.78.050. Minimum lot size was set at 21,780 square feet with a required lot width of 100 feet, front setback of thirty feet, and side and rear setbacks of ten feet. Id. § 18.78.060(A)-(D). Application of the new ordinance to the Gibby property would allow Gibby to build a forty-seven home development. Id. § 18.78.080(A). On August 23, 2007, Gibby applied to have the Gibby property rezoned from CE-1 to PD-2. On September 18, 2007, the City Council unanimously voted to approve the application.

¶ 5 Appellants, Friends, are members of a Utah not-for-profit organization comprised of citizens of Mapleton. On October 5, 2007, Friends filed a petition for referendum with the County Clerk, seeking to subject the City Council's action in creating the PD-2 zone to a vote by the citizens of Mapleton. Additionally, Friends filed a Verified Complaint with the Fourth District Court on October 15, 2007, seeking a temporary restraining order and preliminary and permanent injunctions prohibiting Mapleton from rezoning the Gibby property pending the outcome of the referendum. The trial court issued a TRO against Mapleton the same day. The parties stipulated that the preliminary and permanent injunction hearings and trial on the merits would be combined, and that the TRO would remain in effect until the conclusion of the trial. In a five-day bench trial, the court analyzed the facts under the test set out by this court in Citizen's Awareness Now v. Marakis, 873 P.2d 1117 (Utah 1994), and determined that the City Council's action creating the PD-2 zone was administrative in nature and therefore not subject to referendum. Friends appealed to this court.

STANDARD OF REVIEW

¶ 6 The trial court determined that Mapleton City's action was administrative by applying the test in Citizen's Awareness Now v. Marakis, 873 P.2d 1117 (Utah 1994), to what it determined were the facts of this case. "We review the trial court's factual findings for clear error and review its legal conclusions for correctness." Houskeeper v. State, 2008 UT 78, ¶ 18, 197 P.3d 636.

ANALYSIS

¶ 7 The underlying question of this case is whether the Mapleton City Council's action in creating the PD-2 zone is referable to the citizens of Mapleton. Our case law has firmly established that, while the "power of the people to legislate directly through referenda is a constitutionally guaranteed right," that right exists only "when the law or ordinance the voters seek to challenge was enacted legislatively as opposed to administratively.... Administrative zoning matters are not referable to the voters as a matter of constitutional right while legislative zoning matters are referable." Save Beaver County v. Beaver County, 2009 UT 8, ¶¶ 16-17, 203 P.3d 937 (internal quotation marks omitted).

¶ 8 While this black letter rule is easily stated, in practice it has proven difficult to distinguish between legislative and administrative actions. If the nature of the ordinance is not readily discernable, "courts must look to the substance of the city council's action to determine if it is legislative or administrative." Low v. Monticello, 2002 UT 90, ¶ 24, 54 P.3d 1153. For the purpose of this determination, this court has established the sequential, four-part Marakis test. Under this test, the trial court first determines (1) whether the threshold requirement of proper notice of the zoning change to the affected citizens is satisfied, and then considers, in turn, the elements of (2) whether the new zoning ordinance is consistent with the "general purpose and policy of the original zoning ordinance," (3) whether the new zoning ordinance is a "material variation from the basic zoning law of the governmental unit," and (4) the appropriateness of voter participation in the matter. Citizen's Awareness Now v. Marakis, 873 P.2d 1117, 1123-25 (Utah 1994) (internal quotation marks omitted). Thus, the Marakis test requires that a trial court engage in a "fact-intensive analysis," Mouty v. Sandy City Recorder, 2005 UT 41, ¶ 24, 122 P.3d 521, in order to reach a legal conclusion regarding whether a governmental action is legislative or administrative.

I. FRIENDS DID NOT ADEQUATELY MARSHAL THE EVIDENCE TO CHALLENGE THE TRIAL COURT'S MARAKIS DECISION

¶ 9 Friends asks us to find that the trial court misapplied the facts that led to that court's Marakis conclusion that Mapleton acted administratively in enacting the PD-2 zone. We decline to engage in this analysis because Friends failed to properly marshal the evidence.

¶ 10 To adequately fulfill the marshaling requirement, the appellant must temporarily assume the role of his adversary, presenting us, "in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists." Chen v. Stewart, 2004 UT 82, ¶ 77, 100 P.3d 1177 (quoting Neely v. Bennett, 2002 UT App 189, ¶ 11, 51 P.3d 724). A recital of the trial court's findings with which the appellant disagrees does not amount to marshaling. Rather, the appellant must educate the court as to exactly how the trial court arrived at each of the challenged findings. This requires "a precisely focused summary of all the evidence supporting the findings," correlated to the location of that evidence in...