Wednesday, September 3, 2008

Collection of articles on the Beaver County referendum fight and the Attorney General's office gives the opinion that SB53 is unconstitutional

Do you believe Governor Huntsman actually read SB53 before signing it? What about legislators? What about Senator Goodfellow? Was it just cut and pasted from an email from Steve Barth? And this is the shorter of the two referendum change bills...

I am posting these articles with a few things underlined by me.

Utah AG has doubts about new law banning voter initiatives on land issues
By Cathy McKitrick
The Salt Lake Tribune
Article Last Updated: 05/06/2008 11:22:19 PM MDT

Posted: 9:42 PM- The Utah Attorney General's Office believes there's a good chance that a new law banning voter initiatives on land-use ordinances is unconstitutional.
In an April 29 letter to Sevier County Attorney Dale Eyre - obtained by The Tribune today through an open-records request - Assistant Attorney General Thom Roberts said there is "a serious concern that a court would strike SB53 down as violative of the Utah constitutional provisions concerning initiatives."
Roberts wrote that by banning initiatives and referenda on land-use ordinances, the law "appears in direct conflict with the Utah Supreme Court cases" on such voting rights.
A group of Sevier County residents, dubbed the Right to Vote committee, turned in 1,536 signatures last Friday to put plans for a coal-fired power plant to a public vote. SB53 took effect Monday.
The bill's sponsor, along with the lobbyist credited as the brains behind the developer -friendly measure, defended its purpose.
"My legislation was in no way intended to take away the right of the people to petition their government," said Sen. Brent Goodfellow, D-West Valley City. "But I think that right applies to legislative matters, not administrative or executive. I was trying to put into statute what is already in case law."
Lobbyist Steve Barth agrees.
"The court has been very consistent in drawing that line and this was to save people the time and money of a wasted referendum effort," Barth said.
One of Barth's clients, Mount Holly Partners, faces extended litigation brought by Beaver County residents who oppose the multi-billion-dollar Mount Holly Club project planned for 1,800 acres in the Tushar Mountains.
A 5th District Court judge ruled last July against the residents and their desire to put that development to a public vote. Their attorney, Joel Ban, appealed the case to the Utah Court of Appeals and briefs are expected to be filed this week.
Ban said he suspected - but did not know - that developers had turned to the Legislature to try to cut off such citizen ballot movements.
"That's typical of these kind of developers," Ban added. "I'm not surprised by anything they've done."
Goodfellow's SB53, touted as mostly housekeeping during the recent Legislative session, sailed through with little opposition
"No one asked for our opinion on its constitutionality until now," said Attorney General spokesman Paul Murphy.
Eyre, the Sevier County Attorney dislikes SB53. And he agrees with the AG's opinion.
"It will help the county make its decision," Eyre said, noting that commissioners can either enact the Right to Vote committee's ordinance themselves, place it on November's ballot or reject it.
That ordinance would require that all future power plant applications go to a public vote and would also revoke any power permit granted between the filing date of the initiative and the time of the vote.
Gov. Jon Huntsman Jr. signed SB53 in mid-March.
"It's fair to say that we don't get an AG opinion on every bill that passes," said Lisa Roskelley, the Governor's spokeswoman.
"Considering it passed with such an overwhelming majority, we thought it was appropriate to sign it into law and if it came to this situation, any judicial clarification would be beneficial."

Beaver County: New law put to the test by developer
Attorneys argue that it renders a citizens referendum on a development moot
By Cathy McKitrick
The Salt Lake Tribune

A law that took effect Monday - a law the state Attorney General's Office believes could be unconstitutional - is being used as a developer's argument to get a voting-rights case tossed out of court.
When SB53 was going through the Legislature earlier this year, backers called it a "housekeeping" measure that simply put into code established case law.
Attorneys for a planned $3.5 billion Mount Holly Club development in Beaver County, however, argue the new law is much more than a technicality.
On Tuesday, one day after the new law took effect, lawyers representing Mount Holly Partners LLC, CPB Development LC and Beaver County, filed briefs in the Utah Court of Appeals asking that a lawsuit brought by a group of Beaver residents be dismissed.
The attorneys argued that SB53 renders a citizens referendum on the project moot and that the case belongs in the state Supreme Court, not the Court of Appeals.
Steve Barth, a lobbyist who claimed credit for the bill, lists Mount Holly as a client.
"The 2008 Utah Legislature has enacted revisions to the Utah Elections Code, effective May 5, 2008, which make land-use ordinances of the nature at issue in this case not subject to a referendum vote," the briefs state. In other portions of the documents, the attorneys specifically identify SB53 as the basis of their argument.
A message left for the Mount Holley attorneys was not returned Thursday.
Attorney Joel Ban, who represents the residents group, said he has 10 days to file his response.
"I don't think SB53 is constitutional - that's what I'm sure about," Ban said Thursday. "But in terms of its effect on this case, that's up in the air right now."
A letter released by the Utah Attorney General's Office Tuesday in a different voting-rights case - this one in Sevier County - said there is "serious concern that a court would strike SB53 down as violative of the Utah constitutional provisions concerning initiatives."
The Beaver County dispute heated up last spring when county commissioners passed an ordinance authorizing the county to enter into a developer's agreement, paving the way for phased construction of 2,000 multimillion-dollar homes around a ski resort and premiere golf course.
Members of a long-standing homeowners association went to court to halt the project and gathered 845 signatures to put it to a public vote. Last June, a 5th District judge ruled in favor of the developer, deeming the commission's decision administrative and therefore not subject to referendum.
The residents' group is appealing that ruling.
The original version of SB53 introduced in the Legislature stated that the voting ban applied to a land-use or zoning matter "administrative in nature." However, before it's first floor vote, that was replaced with broader language.
Lincoln Shurtz, legislative analyst for the Utah League of Cities and Towns, helped to craft the substitute version, which passed with minimal opposition.
The bill was changed out of concern the original went too far in trying to "draw a bright line between administrative and legislative" actions, Shurtz said.
"That line is quite blurry at times," Shurtz acknowledged.

What does SB53 do?

Lobbyist Steve Barth pushed for legislation to help his client, Mount Holly Partners LLC. In the recent legislative session, Sen. Brent Goodfellow, D-West Valley City, sponsored SB53 and Rep. Kevin Garn, R-Layton, co-sponsored it in the House. Here's what SB53 does:
* Bars legal voters of any town, city or county from initiating a land-use ordinance or a change to a land-use ordinance.
* Also bars the aforesaid voters from requiring the implementation of a land-use ordinance to be submitted to a public vote.
Mount Holly
Lawyer urges project to go to referendum
Developers, on their part, say the appeal should be dismissed
By Cathy McKitrick
The Salt Lake Tribune
Article Last Updated: 05/22/2008 01:05:32 AM MDT

A developer's legal battle to block a public vote on its plans for a
pricey ski-and-golf resort in Beaver County took a circuitous and
"desperate" detour through the state Legislature, charges an attorney
for resort opponents.
"In what can only be described as a series of desperate acts,
[developers] have taken extraordinary measures to try and avoid a
legal review of the trial court's conclusions," Joel Ban, attorney for
a grass roots group trying to put the Mount Holly project to a vote,
wrote in appeal briefs filed Wednesday.
"[Developers] hired a lobbyist, pursued an amendment to the
referendum statute and then filed a request to extend the briefing
schedule. Knowing that SB53 had been signed by the governor and would
become effective May 5, they nonetheless waited until the last day to
act," Ban wrote.
Sen. Brent Goodfellow's SB53 - a new law confusing to the point
state lawyers say it could be unconstitutional - took effect May 5.
A day later, CPB Development LC and Mount Holly Partners LLC used
it as the basis to ask that a resident group's appeal get tossed out
of court.
Ban wants the Utah Court of Appeals to allow the Mount Holly
project to go to a referendum vote. A lower court, in a complex
decision, ruled it could not.
Ban claims the issue is subject to referendum because the county
decision constituted legislative action - the enacting of an ordinance
establishing the details of the Mount Holly Club development
Developers say the appeal should be dismissed, arguing that SB53
bans referendums on all local land-use issues. It also claims the
state Supreme Court is the proper forum for an elections dispute.
In late April the state Attorney General's Office questioned
SB53's constitutionality in a letter sent to Sevier County Attorney
Dale Eyre - concerning another right-to-vote effort, this one over a
controversial coal-fired power plant.
Assistant Attorney General Thom Roberts cited Article 6 of the
state Constitution, which provides for the people's fundamental right
to legislate through initiative and referenda.
That right - viewed as sacrosanct - bucks up against individual
property rights, said Dan McDonald, an attorney with Smith Hartvigsen,
the firm representing CPB and Mount Holly.
"More and more, citizen groups who dislike a landowner or
development organize themselves to challenge land-use decisions,"
McDonald said.
"The Supreme Court has repeatedly recognized that individual
property rights are important as well as deference to local land-use
McDonald intends to file a quick answer to Ban's brief today -
although the court could rule without it.
The weighty issues of SB53's constitutionality - and application
to this case - cannot be ignored, McDonald said.
"This has statewide impact and is important enough that we think
it will percolate to the Supreme Court, no matter who loses in the
Court of Appeals."
Muzzling the people: Legislature should not take lawmaking petitions away
Tribune Editorial
Article Last Updated: 06/15/2008 10:47:56 PM MDT

The Utah Constitution says that two groups can make laws: the
Legislature and the people. The first group is trying to cut the
second group out of the process. That isn't right, and the Utah
Supreme Court should put a stop to it.

This year, the Legislature passed Senate Bill 53, which says that
the voters of any county, city or town may not initiate a land use
ordinance or a change in a land use ordinance. That's the right of
initiative we all learned about in school.
For good measure, the Legislature also said that the people may
not require a land use ordinance passed by the local legislative body
(city council or county commission) to be submitted to the voters for
approval before it can take effect. That latter process is called a
This bill, which was passed virtually without opposition in the
Legislature and signed quickly into law by Gov. Jon Huntsman, is an
insult to the plain wording of the Utah Constitution, which reserves
the rights of both initiative and referendum to the people.
In 2002, the Utah Supreme Court commented that "the power of the
Legislature and power of the people to legislate through initiative
and referenda are coequal, coextensive and concurrent and share 'equal
dignity.'" It follows that the Legislature can't take that power away
from the people in defiance of the Utah Constitution.
Why would the Legislature do this? To help developers, of course.
In the delicate balance between private property rights and community
interests, the Legislature is putting its thumb on the scale to favor
Private property rights are a foundation of the republic. But when
one property owner does something that profoundly affects his
neighbors, and their property, there's got to be a balancing process.
That's where local planning and zoning laws come in.
SB53 passed during a bitter fight in Beaver County over the
redevelopment of Elk Meadows Resort into the $3.5 billion Mount Holly
Club. The citizen effort to make that project the subject of a
referendum will provide the test case for SB53 before the Utah Supreme
Court. The outcome of that case also will affect an initiative
petition in Sevier County targeting a proposed 270 megawatt coal-fired
power plant near Sigurd. Both of these projects will have far-reaching
effects on the neighboring communities.
In both fights, the people should have the right to seek a direct
voice at the ballot box, and the Legislature should not be allowed to
muzzle that voice.

No comments: