Mouty v. The Sandy City Recorder

• Decision Date: 21 September 2005
• Docket Number: No. 20050101.,20050101.
• Citation: 2005 UT 41,122 P.3d 521
• Parties: Steven MOUTY, Rick Burrell, Barbara Peterson, Gerald Jantz, Ted Brown, and Save Our Communities, Inc., Petitioners, v. THE SANDY CITY RECORDER and Sandy City, a municipal corporation, Respondents.
• Court: Utah Supreme Court

122 P.3d 521

2005 UT 41

Steven MOUTY, Rick Burrell, Barbara Peterson, Gerald Jantz, Ted Brown, and Save Our Communities, Inc., Petitioners, v. THE SANDY CITY RECORDER and Sandy City, a municipal corporation, Respondents.

No. 20050101.

Supreme Court of Utah.

July 1, 2005.

Rehearing Denied September 21, 2005.

COPYRIGHT MATERIAL OMITTED

Robert H. Hughes, Salt Lake City, for petitioners.

Walter R. Miller, Sandy, for respondents.

Stephen K. Christensen, Jeffery S. Williams, Salt Lake City, for the Boyer Company.

Mark E. Hindley, Salt Lake City, for Gibbons Realty Company.

Vincent C. Rampton, Salt Lake City, for Lowe's.

DURRANT, Justice:

¶ 1 To resolve the present controversy, we must determine whether a city ordinance that amends the permitted and prohibited uses of land in a particular zoning category can be subjected to the referendum process. If the ordinance in question is referable, we must then determine whether the ordinance is a "land use law," a class of referable laws subject to a higher signature threshold than generally required. We conclude that the ordinance is referable and that it is not a "land use law."

BACKGROUND

¶ 2 At stake in this case is whether the voters of Sandy City, Utah, will be given the opportunity to hold a referendum on an amendment to one of the city's zoning categories. If the amendment is not rejected via referendum, a large parcel of land in the city may ultimately serve as the location of a commercial complex featuring at least two prominent "big box" retailers.¹ The parcel in question (the "Gravel Pit") is approximately 100 acres in size and for many years served as a source for sand and gravel products.

¶ 3 In 1988, Sandy City created a new zoning category specifically for the Gravel Pit. That category, termed "Special District Mixed Use — SD-X — Ski Connect" ("SD-X Zone"), was only applied to the Gravel Pit, and the Gravel Pit remains the only parcel of land that is classified as an SD-X Zone. At the time of its creation, the SD-X Zone permitted nine uses and prohibited twenty-six. Among the prohibited uses was use of the parcel for a "Hardware/Building/Home Improvement Store, or a combined Drug/Variety/Garden Center." Sandy City, Utah, Municipal Code § 15-29-20(c)(3) (2002). Discount or department stores, as well as supermarkets, were also prohibited. Id. ¶ 4 In April 2004, The Boyer Company ("Boyer") contacted Sandy City via letter and requested that the ordinance outlining the permitted and prohibited uses of land classified as an SD-X Zone be amended to allow a substantial commercial development project on the site of the Gravel Pit. The development project, as contemplated by Boyer, would include big-box retailers Wal-Mart and Lowe's. Sandy City considered Boyer's request, and the city's planning commission and city council both held multiple public hearings and meetings at which members of the public were invited to voice their opinions about amending the SD-X Zone category to permit such a development project.

¶ 5 In the summer of 2004, several Sandy City residents and business people formed Save Our Communities, Inc. ("SOC"), intending to fight the proposed development of the Gravel Pit. Although SOC now states that it considered the approval of the SD-X Zone amendment to be "predetermined," SOC actively opposed the amendment by participating in the public hearings and meetings leading up to the amendment's passage. SOC also voiced its opposition to the amendment by sending letters to both the planning commission and the city council. After the public hearings and meetings were concluded, and approximately seven months after Sandy City initially received Boyer's request for an amendment of the SD-X Zone category, the Sandy City Council enacted Ordinance No. 04-45, which amended the SD-X Zone category to allow the development activity proposed by Boyer.²

¶ 6 Just over a week after the ordinance was passed, SOC submitted an application for a referendum petition to the Sandy City Recorder, hoping to obtain enough signatures to subject Ordinance No. 04-45 to a referendum vote. Approximately one month later, SOC completed its signature drive and submitted signed and verified petition packets to the Sandy City Recorder. During the course of its drive, SOC was able to secure over 8,000 signatures. However, when seeking signatories to a petition, not all signatures are created equal, as only signatures by legal Utah voters³ residing within the local jurisdiction are counted toward the required signature number. Utah Code Ann. § 20A-7-605(1) (2003). Therefore, pursuant to section 20A-7-606 of the Utah Code, id. § 20A-7-606, the SOC petition packets were delivered to the Salt Lake County Clerk's Office for signature certification.

¶ 7 After the signature certification process was complete, the Salt Lake County Clerk forwarded the SOC petition packets to the Sandy City Recorder for a final signature count. Typically, the number of valid signatures that a party must obtain in order to force a referendum on a legislative action taken by a city is equivalent to at least ten percent of the total number of local voters who cast votes for candidates in the last gubernatorial election, assuming the total number of votes cast in that city exceeded 25,000. Id. § 20A-7-601(1)(a) (Supp.2004). However, because the Sandy City Recorder determined that Ordinance No. 04-45 is a "land use law," the SOC petition packets were subjected to the doubly demanding twenty percent requirement applicable to such laws. See id. § 20A-7-601(2)(b).

¶ 8 Informed by the Salt Lake County Clerk's Office that 39,700 Sandy voters had participated in the last gubernatorial election, the Sandy City Recorder determined that 7,940 legal signatures — twenty percent of the total number of local voter participants in the last gubernatorial election — were required in order to force a referendum on Ordinance No. 04-45. The Sandy City Recorder then counted the number of signatures certified by the Salt Lake County Clerk's Office and concluded that SOC had obtained 6,425 valid signatures. Because SOC failed to meet the twenty percent signature requirement, the Sandy City Recorder refused to accept and file SOC's referendum petition.

¶ 9 SOC subsequently pursued its right to seek an extraordinary writ in this court compelling the Sandy City Recorder to accept and file its referendum petition.⁴ See id. § 20A-7-607(4)(a) (2003) ("If the local clerk refuses to accept and file any referendum petition, any voter may apply to the Supreme Court for an extraordinary writ to compel him to do so. . . ."). In its petition, SOC contends that the Sandy City Recorder erroneously concluded that Ordinance No. 04-45 is a "land use law" and therefore improperly subjected SOC's referendum petition to the higher twenty percent signature requirement. In response, Sandy City argues that Ordinance No. 04-45 is not referable to the voters at all because it is an individual property zoning decision and therefore immune from the referendum process, and that, even if the ordinance is referable, the Sandy City Recorder correctly determined that the ordinance is a "land use law," and that SOC was therefore properly obligated to meet the more stringent twenty percent signature requirement.

¶ 10 Typically, this court exercises appellate jurisdiction, reviewing the decisions of the state's district courts and those of the Utah Court of Appeals. However, this court has original jurisdiction over certain matters, including petitions for extraordinary writs. Id. § 78-2-2(2) (2002). In such situations, we do not conduct a review in our appellate capacity, but rather serve as the forum in which claims are initially heard. We have jurisdiction over this matter pursuant to Utah Code section 78-2-2(2) (2002).

STANDARD OF REVIEW

¶ 11 Because there are no disputed material facts, our review in this matter is confined to discerning the proper interpretation of various provisions of the Utah Code. We conduct our review for correctness and grant no deference to the Sandy City Recorder's legal determinations. See Tobias v. S. Jordan City Recorder, 972 P.2d 373, 373-75 (Utah 1998) (conducting a correctness review and granting no deference to a city recorder's determination that an application for a referendum petition was not timely filed).

ANALYSIS

¶ 12 In order to ascertain whether it is appropriate to issue a writ compelling the Sandy City Recorder to accept and file SOC's referendum petition, we must determine the following: (1) whether Ordinance No. 04-45 is referable to Sandy City voters at all, and, if so, (2) whether that ordinance is a "land use law," requiring SOC to obtain twice the number of signatures typically necessary before a referendum petition is deemed legally sufficient. We address each of these issues below. However, we first respond to Boyer's suggestion that, because Boyer's applications for the development of the Gravel Pit have now been accepted by Sandy City, the vested rights doctrine precludes the possibility of a referendum and that the current controversy is therefore moot.

I. THE VESTED RIGHTS DOCTRINE DOES NOT RENDER THE CURRENT CONTROVERSY MOOT

¶ 13 Boyer claims that SOC's petition is moot because Boyer has now obtained vested development rights that cannot be disturbed by referendum.⁵ The only legal authority Boyer cites in support of its mootness claim is Western Land Equities, Inc. v. City of Logan, 617 P.2d 388 (Utah 1980). In that case, we held "that an applicant is entitled to a building permit or subdivision approval if his proposed development meets the zoning requirements in existence at the time of his application and if he proceeds with reasonable diligence, absent a compelling, countervailing public interest." Id. at 396. We went on to provide, however, that an applicant is not entitled to rely on zoning ordinances in effect at the time of application if "proceedings to amend [those] zoning...