Save Beaver County v. Beaver County
| Decision Date | 03 February 2009 |
| Docket Number | No. 20070656.,20070656. |
| Citation | 2009 UT 8,203 P.3d 937 |
| Parties | SAVE BEAVER COUNTY, The Beaver River, and Varied Estates (BRAVE), a Utah non-profit corporation, Plaintiff and Appellant, v. BEAVER COUNTY, Beaver County Planning Commission, and the Beaver County Board of County Commissioners, Beaver County Governmental Entities, Defendants and Appellees. CPB Development, LC; and Mount Holly Partners, LLC, Intervenors, Defendants and Appellees. |
| Court | Utah Supreme Court |
Joel Ban, Salt Lake City, for plaintiff.
Barton H. Kunz II, Craig V. Wentz, Salt Lake City, for defendants.
Earl Jay Peck, J. Craig Smith, Daniel J. McDonald, Salt Lake City, for intervenors.
¶ 1 Appellant Save Beaver County, The Beaver River, and Varied Estates (BRAVE) appeals from a ruling of the district court holding that Beaver County Ordinance 2007-04 was enacted administratively and therefore is not subject to a referendum vote by the citizens of Beaver County. BRAVE also appeals the district court's ruling that the citizens of Beaver County were provided proper notice of a hearing held on April 2, 2007 to discuss the County's proposed development agreement with CPB Development and Mount Holly Partners. Appellees Beaver County, Beaver County Planning Commission, the Beaver County Commissioner, and Beaver County Governmental Entities (collectively Beaver County) and Intervenors CPB Development and Mount Holly Partners bring two motions suggesting that the issues in this case are moot. We hold that the issues are not moot. We affirm the district court's ruling as to notice but reverse the ruling on referability.
¶ 2 Mount Holly Partners and CPB Development (collectively, Intervenors) are the landowners and developers, respectively, of a 1,826 acre, long-term, mixed use, master-planned development in Beaver County known as "Mt. Holly Club." As planned, Mt. Holly is a gated club with an 18-hole golf course, a private ski resort, and up to 1,204 residential units.
¶ 3 Mt. Holly's concept plan was approved by the Beaver County Planning Commission on November 15, 2006, conditioned on the adoption of a comprehensive development agreement. After a public hearing on March 21, 2007, the Planning Commission formulated a development agreement recommendation. A public hearing to receive comment on this recommendation was scheduled for April 2, 2007. On March 16, 2007, Beaver County posted notice of the hearing in three public locations: the Beaver County courthouse, Minersville City Hall, and Milford City Hall. Additionally, on March 22 and 29, the County ran a notice of the hearing in The Beaver Press, a local, generally circulating newspaper which is published once a week. Both the posted and published notices stated that the hearing was for the purpose of receiving public comment on the (1) "Mount Holly Development Agreement and ... Site Development Plan," (2) "Amendments to the Beaver County Zoning Ordinance for the Mount Holly Development Agreement and ... Site Development Plan," and (3) "Amendments to the Beaver County Subdivision Ordinance for the Mount Holly Development Agreement and ... Site Development Plan." A copy of the most current draft of the development agreement was posted on the County's website in the late afternoon of March 30, 2007. The hearing was held as scheduled and was followed by a one week period for written public comment, during which the County received and reviewed more than two hundred comments. The resulting development agreement was executed on April 25, 2007. Five days later, the County Commission enacted Ordinance 2007-04, which adopted the development agreement "as a Land Use Ordinance of Beaver County...."
¶ 4 On May 10, 2007, Beaver County published a "Notice of Adoption of Ordinance" in The Beaver Press. That same day, at least twelve people requested applications for referendum petitions from the county clerk. The completed petitions requested that the County's adoption of the development agreement be referred "to the voters for their approval or rejection at the regular general election to be held on November 4, 2008." Ultimately, 845 signatures were submitted to the county clerk, more than sufficient to require a referendum.
¶ 5 BRAVE, an alliance of Beaver County citizens, filed an administrative appeal to the adoption of Ordinance 2007-04 on May 2, 2007. On May 7, 2007, the Board of County Commissioners voted to deny the appeal. In a letter to BRAVE, it stated that the denial was based on "lack of jurisdiction" and indicated that the "proper forum for resolving the dispute appears to be in the District Court."
¶ 6 BRAVE filed its first complaint against Beaver County in the district court on May 5, 2007. On May 25, 2007, BRAVE filed an amended complaint requesting that the court invalidate the development agreement, or, alternatively, enjoin the implementation of the ordinance due to the pending petition for referendum by the citizens. In response, the court issued a temporary restraining order enjoining implementation of the ordinance until a referendum vote could take place. On June 13, 2007, the parties stipulated in open court to an expedited trial to determine, among other issues, whether the notice provided by the County for the April 2, 2007 meeting was sufficient and whether Ordinance 2007-04 was subject to a referendum vote. Also on June 13, the court granted CPB and Mount Holly's motion to intervene as defendants, subject to a restriction that they would not expand the issues presented.
¶ 7 The trial was held on July 21-22, 2007. The district court ruled that the notice provided for the April 2 hearing complied with the requirements of the relevant statute and zoning ordinance and was therefore proper. As to the issue of referability, the district court ruled that, as the County had denied jurisdiction to hear BRAVE's administrative appeal on the grounds that it had acted legislatively in adopting Ordinance 2007-04, it was now judicially estopped from taking the position that it had acted administratively. However, the district court determined that there was no basis for applying judicial estoppel to Intervenors. Instead, it applied our test in Citizen's Awareness Now v. Marakis, 873 P.2d 1117 (Utah 1994) and found that the County's action was administrative and therefore not referable. BRAVE appealed to this court.
¶ 8 On May 6, 2008 Intervenors filed a Motion for Summary Disposition and Suggestion of Mootness which suggested that the issue of referendum is moot due to the adoption of Utah Code section 20A-7-401(2) which limited the citizens' rights to initiate a referendum in the case of land use ordinances. Finally, Beaver County, later joined by Intervenors, filed a Suggestion of Partial Mootness on November 13, 2008 arguing that the completion of the November 4, 2008 general election rendered the referendum issue moot.
¶ 9 First, whether notice was proper is a question of law, which this court reviews for correctness, giving deference to the facts on which the lower court's decision was based. Low v. City of Monticello, 2004 UT 90, ¶ 11, 103 P.3d 130. Second, estoppel is a "mixed question of law and fact of an extremely fact-sensitive nature to which we grant significant deference." Glew v. Ohio Sav. Bank, 2007 UT 56, ¶ 19, 181 P.3d 791. Lastly, "the district court's determination that [an ordinance] is not subject to referendum is a legal conclusion to which we give no particular deference and which we review for correctness." Citizens for Responsible Transp. v. Draper City, 2008 UT 43, ¶ 8, 190 P.3d 1245.
¶ 10 We first address the Suggestions of Mootness, followed by the issue of notice. Finally, we discuss the question of referability, including the application of estoppel.
¶ 11 Intervenors' Suggestion of Mootness contends that the Utah Legislature resolve the issue of referability in Utah Code Section 20A-7-401(2), which limits citizens' rights to initiate a referendum in the case of land use ordinances. This court found that statute to be unconstitutional in Sevier Power Co. v. Bd. of Sevier County Comm'rs, 2008 UT 72, ¶¶ 10-11, 196 P.3d 583. Intervenors' claim is therefore without merit.
¶ 12 Beaver County's Suggestion of Mootness contends that with the passing of the November 2008 election, BRAVE's petition to have ordinance 2007-04 submitted "to the voters for their approval or rejection at the regular general election to be held on November 4, 2008" and to prevent Ordinance 2007-04 from taking effect until such referendum had taken place is now rendered moot. We disagree. The purpose behind BRAVE's petition for referendum is to bring the issue of the County's adoption of the Mount Holly Development Agreement as law before the voters of Beaver County. The date "November 4, 2008" is not an essential or even significant element of that petition. Thus we hold that the issue of referendum is not rendered moot by the completion of the November election. Pursuant to our ability to fashion a remedy according to the circumstances of a particular case, we hold that BRAVE's referendum can be included on the ballot of a future Beaver County election.
¶ 13 Utah law requires that "[e]ach county shall give ... notice of the date, time, and place of the first public hearing to consider the adoption or modification of a land use ordinance" by causing notice to be "posted ... in at least three public locations within the county; or ... published in a newspaper of general circulation in the area at least ten calendar days before the public hearing...." Utah Code Ann. § 17-27a-205(1)-(2) (2005). Notice of subsequent hearings must be posted in at least three public locations or on the county's website...
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