*1 NOW, a CITIZEN’S Utah AWARENESS organization,
not-for-profit Plaintiff Appellant,
Jaylene MARAKIS, East Re Carbon
corder; Clark, Mayor, Paul East Carbon
City; Fisher, Palmer, Barbara Rakele MacFarland, Leroy Tharp,
Todd
Don McCourt the East Carbon
Council; McCourt, Chairman, Don East Commission; Planning
Carbon and the Development Corporation,
East Carbon Appellees.
Defendants and
No. 920467.
Supreme Court of Utah.
1H9 requested denial of the referenda. .We re- verse and remand.
During spring ECDC negotiations Council entered into re- garding ECDC’s desire to build *3 facility disposal owned on solid-waste land adjacent City. exchange to East Carbon benefits, pro- for certain economic ECDC posed City that Carbon East annex the land facility. zone it for such East Because City’s Carbon development current code did permit privately facility, not owned the City Council realized that it have to would city’s zoning regulations amend if the it ac- cepted proposal. City began zoning
The modifi- Council the 11, 1989, process July cation on when it passed 15-89. resolution This resolution primary purpose annexing stated that the for property the ECDC was “to facilitate the operation establishment and waste Solid disposal facility.” The also ac- resolution knowledged present City Zoning “[t]he that Collard, Stephen Russell, Kathryn P. J. permit Ordinance not does the establishment City, plaintiff. for Salt Lake privately disposal [a owned solid-waste facility]” City’s and stated the intention to Keller, Price, City Dan C. for East Carbon Development “consider an amendment to its officials. privately operated solid Code to allow waste Sullivan, City, Alan L. Salt Lake and Nick disposal use, permitted as a facilities Price, Sampinos, Develop- for East Carbon place property] the within a zone [ECDC Corp. ment permits which of such a the establishment
use.” DURHAM, Justice: copy provided resolution this court it was fails indicate whether 2,500 dispute approximately This concerns officially the filed and recorded with East (the City acres of in East land Carbon City Carbon reflects Recorder. The record Property”), by the “ECDC owned East Car- public City that the Council conducted (“ECDC”), Corporation Development bon on resolution, hearing regarding the but which privately ECDC constructed a owned public minutes do not reveal whether the dollar multi-million solid-waste facili- properly hearing, notified ty. Plaintiff Citizen’s Awareness Now public actually interested members (“CAN”) sought referenda on two attended, City public- or whether the Council by the ordinances enacted East Car- ly discussed the resolution’s substantive con- (the Council”) City “City bon con- Council tent. cerning property. the ECDC Defendant Marakis, Jaylene July 25, passed City City the East On Carbon Re- Council corder, based on ordinance which the ECDC denied referenda annexed City’s Light that and zoned the land 1-1 Indus- determination properly individual deci- trial. this ordinance constituted While recorded, City exempt sions and thus from referenda filed and Council seems to were 11—24(2)(a)(ii) significant labeling under of the have made a error. The section Utah 20— summary light judgment, zoning category only motion manu- Code. On for allowed uses; City’s facturing it did upheld the Seventh District Court and nontoxic industrial city operation dispute, nei- development not records contained not disposal facili- posting owned solid-waste a certificate of nor a notice of ther designation appears ty. The correct adoption for Industrial, 9,1992. to have been General claims that on that until publicly operated. if permitted date, such facilities of posting a certificate for “Ordinance appeared city first As 89-7-25” files. problematic on 7-25-89 is also Ordinance litigation, commencement how- of this grounds. Although the ordinance an- other ever, city files still not contain a did property, zoned the nexed and ECDC adoption. of ordinance notice neglected land to the City to add the Council alleges, city’s map. CAN also official 8, 1989, August City and the On ECDC dispute, that and the Council does not permit- into agreement Council entered an contained no the East Carbon records *4 develop ting operate ECDC to its facili- and posting 7-25-89 certificate for ordinance 25, 1989, July ty. the While minutes of the addition, City April until 1992. the meeting City agree- to this Council refer 25,1989, July minutes for the meet- Council’s ment, they divulge do not its content or they adopted 7-25-89 at which ordinance subject. agreement Pursuant and only City annexing the the state that improper despite zoning designation, the property prop- but the ECDC do not reveal 24, 1989, City on October the Council issued erty’s use. minutes also refer intended one-year permit ECDC conditional use agreement the to an between ECDC and construct, operate, privately and maintain concerning City property, the but ECDC facility disposal owned solid-waste on the divulge again do not or the content By property. began ECDC the time ECDC agreement. that on its facility construction in December Ordinance 7-25-89 does indicate that the however, expired. the had property was to the ECDC annexed point At during some the fall of and conditions in resolution terms set forth allegedly property ECDC that its discovered above, explained 15-89. as the Light zoned 1-1 than Industrial rather was. does not resolution record reveal whether approached I-2 Industrial the General and filed, properly posted, or recorded. City about the discrepancy. Council On Jan- Thus, City neither minutes of the Council 28, 1992, uary City Council addressed meeting nor the face of ordinance by passing concerns ordinance 92-1. gave any property indication that the ECDC adopted zoning map Ordinance 92-1 a new privately the site of a owned solid- would be designated city prop- for the the ECDC facility. disposal waste February erty as 1-2 General Industrial. On passed the same date 7- On ordinance 11, 1992, City Council resolution enacted 25-89, City purportedly Council also 4-92, purported which to continue and reis- adopted passed ordinance which expired condition- sue ECDC’s October 1989 extensive the 1-2 amendments to General permit. al use Resolution 4-92 also reflected nutshell, zoning category. In a Industrial redesignation 92-1’s the ECDC expanded per- ordinance 89-07-25 the uses property from 1-1 to 1-2. designation under the 1-2 to include mitted development operation of a February petitioned for a On CAN facility. owned solid-waste City referendum on ordinance 92-1. The However, according petition ground to a officer who denied the CAN Council on the regularly City’s proper- searched the ECDC that ordinance 92-1 an individual constituted ty property files between December 1991 and decision under section 20- 24(2)(a)(ii) 1992, city do records not contain notice of the Utah CAN sub- Code. II — agenda public meeting regarding sequently sought or ordi- a writ of mandamus from Additionally, City nance 89-07-25. neither this court to secure referendum. The 11, 1989, 25, 1989, Council, turn, 92-4, July July passed nor the Council In- meeting again minutes mention ordinance. rezoned the ECDC deed, alleges, City petitioned CAN and the Council does from 1-1 to 1-2. When for a CAN 92-4, City gory, given to a label on ordinance referendum piece petition particular on the of land. again denied the Council in- constituted an ground that the ordinance Moreover, the record indicates that zoning decision. CAN dividual accomplished Council have sought of mandamus to then a second writ change by circumventing the notice accept CAN’s referendum require the public participation requirements of sec- petition on ordinance 92-4. 10-9-303 to -304 and 20-11-24 of the tions petitions the two This court consolidated grants Code. Utah law citizens the Utah to the district court. and remanded them right permitted to be informed of the current trial, jointly moved for Prior to defendants proposed gov- uses of land and of or actual summary judgment. The district court They changes ernmental in those uses. also motion, granted holding that ordinances and, right have the to comment on under proper- 92-4 constituted “individual circumstances, negate certain or affirm those ty zoning and therefore were not decisions” process. via the referendum See under section 20-11- -304, to referenda §§ Utah Code Ann. 10-9-303 to 20-11- 24(2)(a)(ii). appeal. brought this Further, if citizens are dissatisfied with specific implementation zoning plan, challenge at the outset that a We note they voting option have the out the leaders summary judgment presents for review to a *5 implemented Manning, who it. v. Wilson only questions of Utah R.Civ.P. law. See (Utah 1982) 251, (recognizing 657 P.2d 253 Am., Inc., 56(c); v. N. 814 Schurtz BMW of policy that voters control basic decisions (Utah 1991). 1108, P.2d 1111 We therefore (citing through process) the electoral Shriver legal no to the trial court’s accord deference Bench, 329, 475, 6 Utah 2d 313 P.2d 479 review them for correctness. conclusions but (1957)).1 However, citizens cannot take ad- Schurtz, 1112. 814 P.2d at vantage rights they privy if not these are representa- to the activities of their elected history of the ordinances The convoluted tives. As demonstrated our recitation of upon which seeks referenda raises two facts, certainly this record raises some First, important questions. exactly is what City permit- doubt as to whether the Council “change” in zoning at issue this case? community partic- ted sufficient notice and Second, scope what is the nature and of an ipation. property zoning decision” under “individual 11—24(2)(a)(ii)?
section
The latter
is
20—
view,
zoning change
at issue
our
question
impression.
of first
began
desig-
when the
Council
1989
resolutions,
property 1-1 under ordi-
Through a series of
ordi-
nated the ECDC
nances,
permits,
and resolution 15-89. The
and conditional use
nance 7-25-89
effectively
prop-
change continued with the 1-2 amendment
Council
rezoned the ECDC
erty
permitting only
and concluded in
from a classification
under ordinance 89-07-25
uses,
light manufacturing,
redesignation
to
1992
of the ECDC
nontoxic
such as
with
specifically
property
from 1-1 to
under ordinances
one that
sanctioned
owned,
toxic,
reissuing
fa-
of ECDC’s
possibly
solid-waste
92-1 and
Thus,
cility.
argument
use
under resolution 4-92.
that ordi-
conditional
changes
accomplished sequential-
simply
corrected a These
were
nances 92-1 and
ly
a cumulative effect and should be
typographical error in ordinance 7-25-89 is
but with
question
The
re-
misleading.
zoning
The
at
considered as a whole.
somewhat
however,
mains,
merely
this
issue in this case is not
a clerical
modification,
referendum under section 20-11-
but
a cumulative
warranted
rather
(1)
Resolving
question requires an anal-
particular zoning
of a
cate-
the content
ject
if
referenda]
to
can be set aside in the courts
1. We note that Wilson v.
(ii)
ordinances,
not in-
“Law or ordinance” does
enactment
spectrum
simple imple-
deci-
clude individual
at one end of the
excep-
zoning plans,
such as
sions.
mentations
variances,
the other.
tions and
at
Whether
(b)
petition on
a referendum
When
legis-
particular zoning change amounts to a
adopted under the
any law or ordinance
easily
an administrative act is
deter-
lative or
authority
Chapter
Title
or
original en-
mined at these extremes. The
suffi-
Chapter
Title
is declared
usually leg-
actment of a
cient,
the law or ordinance
referendum,
subject to
while the
islative and
null and void until voted
referendum is
*6
implementation
typically
is
of that ordinance
by
qualified
the coun-
upon
voters of
inappropriate for referen-
administrative and
ty, city, or town.
Wilson,
In
dum.
tice of ordinance (10) in- 07-25; City the at issue in this case the Council issued ECDC develop operate and cumulative effect of a series of use volves the conditional ordinances, resolutions, not zoned for and conditional use facility on land which was its (11) Thus, use; City permitted permits. applying this element to the Council such flexibility. despite requires fact some begin construction instant case ECDC to per- arguably invalid conditional use that its element, applying this the trial When Council re- expired; mit had general pur court must first determine the conditional use newed or reissued ECDC’s original 1-2 pose policy and of the original per- despite the fact that the permit, permitted only publicly category, which already expired may mit had and have been The owned solid-waste facilities. place. in the first invalid trial court must next consider whether the prima Although CAN has made a facie zoning change result of the at cumulative given notice in 1989 was inade- case that the authorizing development op and issue— by standards quate under the established owned solid-waste dis eration -304, 10-9-303 and we note that sections posal facility general pur within the —falls may disprove presumption at tri- ECDC pose policy original designa and of the example, For ECDC and the Coun- al. zoning change If tion. the ultimate falls enough might produce cil evidence to con- general purpose policy within the and at the fact finder that the documents vince classification, original 1-2 it amounts to an filed, properly posted, and record- issue were administrative and is not adequate given. ed and that notice was zoning change if referendum. comport general purpose does not with the Purpose Policy General and classification, policy original of the This element asks whether legislative presumption attaches and the trial newly zoning change enacted falls within the policy must then consider the final two court purpose policy general of the elements. ordinance. See Wilson (Utah 1982) (citing P.2d Material Variance Bench, Keigley v. 97 Utah 89 P.2d (1939)). attempting A trial court to de driven, Though policy the materi general purpose policy of a termine the essentially al variance element asks trial particular consider a courts to make a factual determination as factors, variety plain including lan magnitude importance disputed or of the meeting min guage council zoning change. trial court must decide (or utes, enacting authority the intent of the zoning change “constituted voters, adopted if the ordinance was refer such a material variation from the basic zon endum), other reliable and relevant governmental unit as to consti law the If evidence. See id. falls making ... of a new law rather than tute *8 general purpose policy of the within the and merely comprehensive ‘implementing ... the ” ordinance, original it constitutes an adminis adjusting it plan and to current conditions.’ change trative and is not to referen (Utah 251, Manning, v. 657 P.2d 254 Wilson However, zoning change if dum. the does 1982) Sorenson, (quoting Bird v. 16 Utah 2d comport general purpose and not with the (1964)). 808, words, 394 P.2d 808 In other ordinance, legislative policy original of the a zoning if trial court finds that the even the presumption trial court attaches and the general purpose change falls outside the and elements, must then consider the final two ordinance, policy original it must still appropriateness material variance and of vot change the is of sufficient determine whether participation. er magnitude to constitute a material variance. Thus, change merely imple general purpose policy The and element is a minor adjusts analysis addressing comprehensive plan the and it perhaps best suited to an ments single zoning correspond- to current conditions rebuts the a ordinance and a zoning city government? to rule the requires and the court cies of Was presumption common, decision, change change everyday a or was administrative. that the significantly it the nature of would alter basic Participation Appropriateness Voter community? certainly argua- it is Of the While that the citizens of East Carbon are ble whether final addresses element qualified to to share best determine whether change implicates policy-making a zoning the community with owned sol- their a to control. Under decision amenable voter disposal facility, questions these re- id-waste element, zoning change if was even the by quire hearing the a full and determination of general purpose policy and not within the in accord trial court with the above-described if original ordinance even it amounts the analysis. variance, change should a material the if be ruled voter nevertheless administrative sum, sequential the decision-mak In pertinent inappropriate. is One participation ing process today requires we trial announce change involves is whether the consideration proceed following manner. courts to the “ not complexity ‘of such that is a matter matter, must As a threshold the trial court public give it sufficient practical for the enacting authori first determine whether the proper a determi time and attention make ty provided community adequate the with ” matter.’ v. nation of the Wilson zoning If the change notice of the at issue. (Utah 1982) (quoting 253 Shri 657 P.2d inadequate, notice was the Bench, P.2d 6 Utah 2d 313 ver invalidated, enacting au leaving must be the (1957)). words, zoning In other does the thority prop proceedings free to reinstate complex that change involve matter so However, ade fashion. if the notice was er required the deci voters should be to entrust court quate, the trial must then determine representatives? to their elected sion zoning legislative or change the whether so, significant doing un the court must Another consideration administrative. change is the falls this element whether the first determine whether der “ general exigencies purpose policy ‘the change practical involves within ” so, change is ad operation city government.’ original Id. ordinance. If 478)). Shriver, not (quoting at If cities ministrative and to referendum. P.2d However, efficiently, change must rec if the falls outside of are to function citizens purpose governmental general policy of the ognize that there are certain change legislative presumption attaches in which the for continual areas need expeditious decision trial court must then consider an means of and the necessitates Otherwise, will be final two elements —material variance making. communities appropriateness participation. of voter phenomenon to the undesirable referenda, an inefficient city government to a change amounts Whether virtually arbitrary system that and often essentially de- is a factual material variance piecemeal development. Id. guarantees land involving magnitude or im- termination contemplating this at 252. 657 P.2d When change If the zon- portance of the at issue. concern, trial should consider policy courts change not a material does constitute common, everyday change was a variance, re- legislative presumption is change or rare or unusual change merely administra- butted and the nature significantly will alter the basic if does tive. community. variance, trial court to a material amount particular Determining participation must then determine whether whether voter variance, though general in the in- even outside the appropriate inappropriate or *9 original policy underlying the requires purpose court to consider case the trial stant ordinance, area that example, involves an variety factors. For nevertheless subject If the control. change not be to voter complex too for East Carbon should is participation attention court determines that voter City citizens to devote the time and change adminis- is necessary meaningful inappropriate, referendum? for nature; conversely, if the court exigen- in change practical trative Did the involve the participation appro- plans, comprehensive that voter is determines master priate, zoning change legislative regulations by is in adopted ordinance or reso- nature and to referendum. lution. (ii) “Law or ordinance” does not include conclusion, hold that zon we property zoning individual decisions.
ing change comprised in case is at issue this operation of 15- of the cumulative resolution My difficulty majority with the decision is 89-07-25, ordinance any does not focus on certain ordi- permit, conditional use ordi nance or resolution but considers all action 92-4, 92-1, and resolution 4- nance by January Council from 1989 to improper 92. It was for the trial court to may as one which be hold as a matter of law that majority to referendum. The writes: property zoning constituted an individual de changes accomplished sequen- These were 11—24(2)(a)(ii) cision under section of the 20— tially but with a cumulative effect and Utah Code. We therefore reverse the sum should be considered as a whole. The mary judgment entered below and direct the remains, however, question whether this trial court to determine whether the zoning change warranted referendum un- legislative-type at issue constitutes der- section 20-11-24. change subject un review referendum legislative It is the intent in sections 20- 20-11-24(2)(a)(i) der section or an adminis 11-21 and -24 that referendum must be trative-type change exempt from referendum sought regard specific with to a ordinance or 20-11-24(2)(a)(ii). under section regard resolution and not with to a series ordinances or resolutions which have ZIMMERMAN, C.J., and STEWART and adopted been on the same over a HALL, JJ., concur. period years. requirement that refer- HALL, J., prior acted on this case to his petitioned thirty endum must be for within retirement. days passage after the of the ordinance or possi- resolution would seem to foreclose the HOWE, Justice, dissenting: bility considering several of them “as a agree I I analysis dissent. do not with the whole,” does, majority as the and then allow- majority opinion in widely made which ing any referenda on all or one of them if it is strays perceive from what I is the issue in timely sought adopted. on the last ordinance this case. simply Referendum is not authorized aon § provides Utah Code Ann. in “zoning change” comprised of the “cumula- part: operation” ordinances, tive of four two reso- lutions, Subject and a conditional provisions adopted to the use of this space years. over the
chapter,
legal
three
county,
voters of
town,
city, or
in
required by
numbers
sought
only
referenda
on ordinances
chapter,
may require any
...
law or ordi-
92-4,
92-1 and
adopted.
the last to be
I
passed by
governing body
nance
of the
believe the trial
in uphold-
court was correct
county, city, or town to be submitted to the
the refusal of the
accept
Recorder to
voters before the law or ordinance takes
petitions
because she determined that
effect.
the ordinances were “individual
de-
added.)
20-11-24(1)
(Emphasis
pro-
Section
meaning
cisions” within the
of section 20-11-
petitions seeking
vides that
referendum must
It was the
intent in this re-
city
thirty
be filed with the
recorder within
gard
exempt
from referendum
days
“ordinance,
passage
after the
of the
specific property,
on
as was the case
resolution or franchise.” The 1987 amend-
(Utah
Wilson v.
in more one of than STATE parcel. agree Cross-Respondent, one I consists of more than n with city applies appellees that when v. to one or preexisting zoning classification LOPEZ, Defendant, Gerard Cotero J. parcels held in common owner- more of land Respondent, and Cross- here, ship, it is an “individual as done Petitioner. property zoning decision.” No. 920319. adopted in permitted uses expanded the which of Supreme Court Utah. under classification to include operation owned solid- facility, was not an “individual waste
property zoning because it was not decision” any specific
limited or individual permissible entirely new use of
but added an city. But no in the referendum
sought cannot now on that indirectly through
be referendum obtained
on or 92-4. ordinance 92-1 VI,
CAN that under article sec- contends Constitution,
tion 1 individual of the Utah
property zoning decisions not be ex- right
empted by legislature from the to call for referendum. Not- electorate expressed my dis-
withstanding the views opinion Wilson
senting I adequately was not
conclude that this issue court, and we cannot
raised in the district appeal. the first time on
entertain it for questions raises con- majority opinion
cerning validity procedures in the
adoption of the ordinances because of some notice, posting, recording,
of lack etc. questions were
None of those raised appeal
in the court or on and are not trial they might
now us. Whether be before directly subsequent suit
raised in a validity
challenges adoption scope of this is also outside
appeal.
I district court. would affirm the